Lodo 
a 

a 

i 
os 

} 
NO 

FOREWORD 


The following contains opinions of Attorneys General covering 
a period from 1895 to May 1, 1914, relating to duties of county 
officers presented with a view of assisting county officers in the 
discharge of their official duties as required by law. 


Respectfully submitted, 


JoHN L. BLEAKLY, 
Auditor of State. 


= 
x 
3 

Q\ 


ATTORNEY GENERAL’S OPINIONS 


County ATTORNEYS LEGAL ADVISER OF LOCAL OFFICIALS. 


To all County and Township Officers of Iowa: 


So many requests for opinions are being daily received by the 
Department of Justice and the number is increasing so rapidly 
that it is now very seriously interfering with the regular official 
duties of this office. These requests come from all county and 
township officers and many private citizens. One man is giving 
substantially his entire attention to these opinions but is unable 
then to answer the multitude of inquiries constantly being received. 

The county attorney is the official legal adviser of all county 
officers. Paragraph 7 of section 2 of chapter 17, Acts of the 
Thirty-third General Assembly, provides that it shall be the duty 
of the county attorney ‘‘to give advice or his opinion in writing 
without compensation to the board of supervisors and other 
county officers when requested so to do by such board or officer, 
upon all matters in which the state or county 1s interested,’’ ete. 

Inasmuch then as county attorneys are by law made the official 
legal adviser of all other county officers, all requests for opinions 
from county and township officers should first be made direct to 
the county attorney, and in the event that he has doubt about 
the proposition after duly considering the matter he may receive 
an opinion from the attorney general. 

Generally speaking in matters of local concern the opinion of 
the county attorney should be accepted as conclusive but in mat- 
ters of state wide interest, if the question 1s doubtful and the law 
subject to various interpretations, the county attorney by submit- 
ting his request and stating specifically his views upon the ques- 
tion and his reason and authority relied upon, can receive an 
opinion from this office, but in all requests for opinions the county 
attorney should set forth his views specifically and the authorities 
relied upon for his position. 

This will save confusion, greatly relieve this office and tend to 


uniformity. 
Very respectfully, 


GEORGE Cosson, 
Attorney General of Iowa. 


6 ATTORNEY GENERAL’S OPINIONS 


SCHEDULE G. 


Bonps.—Are binding ordinarily only for the term of office for 
which the principal is elected or chosen, and while by special 
agreement it might be extended beyond this term, the agree- 
ment extending it should be definite as to duration. 

Sir: Iam in receipt of your communication of the 21st of Oc- 
- tober enclosing copy of official bond given by Mr. Swisher as treas- 
urer of the State University of Iowa. The bond covers the term 
beginning July 1, 1909, and ending June 30, 1910, inclusive, and 
further provides that said bond shall cover said entire period, ‘‘also 
the terms of any and all successive re-elections by the State Board 
of Education of the said Lovell Swisher to the said office of treas- 
urer of the State University of Iowa.’’ You request an opinion 
as to whether this is a valid, continuous bond covering successive 
terms of his election as indicated in the clause above mentioned, 
and whether it will obviate the necessity of giving a new bond at 
each successive re-election. 

It is elementary law, in the absence of a special agreement to the 
contrary, that a bond is only valid for the term for which it 
is given, and without passing upon the validity of the bond where 
it is given in perpetuity, I am of the opinion that it would be un- 
wise to accept a bond which*is unlimited as to time. I suggest 
that in order to avoid the necessity of the giving of a bond each 
year with each succeeding election, that the bond be made for the 
current term, and for the term of each and every successive re- 
election not to exceed four years from the date thereof. The bond 
ought to be made to cover the duties then existing with any addi- 
tional duties devolving upon said treasurer or created by law. 

The term of four years of course is wholly arbitrary but a four- 
year period commends itself as reasonable and in consonance with 
good business principles. | 
Yours very truly, 

GEORGE Cosson, 


Attorney General of Towa. 


INSANE PERSONS—SETTLEMENT.—Where a wife has resided with 
her husband in a county of this state for six months when she 
is adjudged insane and committed to the hospital, and the hus- 
band continues to reside in such county for the remainder of 
the year required to establish his settlement in the county, 
that county becomes the legal settlement of the wife, 


ATTORNEY GENERAL’S OPINIONS a 


Sirs: I am in receipt of your communication advising that a 
Mrs. Sloan was adjudged insane by the Commissioners of Insanity 
of Wapello County, Iowa, something like one year ago, and com- 
mitted to the State Hospital at Mt. Pleasant. That prior to May 
12, 1909, Mrs. Sloan had been confined in the State Hospital for 
the Insane in the State of Minnesota, and on said date was paroled 
from that institution and later was discharged from said hospital. 
Immediately after May 12, 1909, Mrs. Sloan, with her husband, 
- came to Iowa with the intention of establishing their residence in 
this state. They first came to Bremer County, Iowa, where they 
remained for about four months and then removed to Wapello 
County, Iowa, where Mr. Sloan procured employment and estab- 
lished a home and they continued to live there until Mrs. Sloan 
was adjudged insane and committed to the hospital as stated; that 
the period they so resided in Wapello County before her commit- 
ment was about six months and that Mr. Sloan, after his wife’s 
commitment in said hospital, continued to make Wapello County 
his legal residence and home, and is his legal residence at this time. 
I understand further that no notice was served either upon Mr. 
Sloan or Mrs. Sloan to prevent them, or either of them, from ac- 
quiring a legal settlement within Wapello County. 

Upon the foregoing state of facts, you request an opinion as to 
whether Mrs. Sloan acquired a legal settlement in Wapello County 
such as to charge that county with lability for her maintenance in 
the hospital. 

I am of the opinion that under the facts and circumstances set 
forth, Mrs. Sloan acquired a legal settlement in Wapello County, 
and that Wapello County is liable for her maintenance in said 
hospital. This conclusion is supported by Section 2224 and 2226 
of the Code, Sections 2270 and 2727-a-28-a of the Supplement to 
the Code, 1907, and the following eases: 


‘Washington County vs. Mahaska County, 47 Ia., 57; 
Scott County vs. Polk County, 61 Ia., 616; 
Gilman vs. Hettman, 137 Ia., 333, 

and other cases and provisions of the statute. 


Respectfully, 
GEORGE COSSON, 
Attorney General of Lowa. 


8 ATTORNEY GENERAL’S OPINIONS 


TEACHERS’ CERTIFICATES.—When once registered need not be re- 
registered; a single registration is sufficient and extends 
throughout the life of the certificates. 


Sir :—Your letter of the 17th instant addressed to the attorney 
general has been referred to me for reply. 

You call attention to section 11 of chapter 1380, acts of the 
Thirty-fourth General Assembly and propound the following 
question : 


‘‘May the county superintendent fix any time limit as to 
the registration of certificates? In other words, may the 
county superintendents require certificates to be registered 
annually ?’’ 


Prior to the acts of the Thirty-fourth General Assembly Code. 
Supplement section 2734-q provided: 


‘‘No person shall teach in any public school in this state 
whose certificate has not been registered with the county 
superintendent of the county in which such school is located. 
A registration fee of one dollar shall be charged for each year, 
or part of the year, for which the certificate or diploma is 


registered. All registration fees shall be paid into the county 
institute fund.’’ 


Under the law as it then stood it is clear that a registration fee 
of $1.00 could be charged for each year or part of year for which 
the certificate is registered and it would indicate that same should 
be registered each year, but by section 12 of chapter 130 of the 
Thirty-fourth General Assembly, all of the underscored portion 
of the section above quoted was stricken out, with the intention, 
doubtless, to repeal the provisions requiring payment of registra- 
tion fee. So that under the section as it now stands, no fee is pro- 
vided for registration of certificates, hence; I am of the opinion 
that a certificate once registered in a particular county need not 
be registered but would be effective in that county without further 
registration during the entire period for which it was issued. 
There would be no purpose in having same registered inasmuch as 
the registration fee is abolished. 

The registration fee of $1.00 now provided for by section 2738 
of the Code Supplement as now amended, is not a fee for regis- 
tration of certificate but registration of person applying for cer- 
tificate or desiring to teach and must be paid each year as follows: 


ATTORNEY GENERAL’S OPINIONS 9 


First. Each applicant for certificate, $1.00. 

Second. Each person desiring to teach in the county not hav- 
ing already paid under above provision for the year and in the 
county in which she desires to teach, $1.00. If this $1.00 is not 
paid at time of enrollment at the normal institute it should be paid 
when certificate is applhed for and each year thereafter when the 
certificate-holder engages by contract to teach. 

Respectfully submitted, 
C. A. RoBBINs, 
Special Counsel. 
uty LO 1911. 
Hon. A. M. DEYOE, 
Superintendent of Public Instruction. 


Sonprers.—The wife of a soldier who is dependent may be received 
into the Soldiers’ Home at Marshalltown although the husband 
elects not to remain in the Home. 


GENTLEMEN :—I am in receipt of your communication of the 1st 
instant advising that ‘‘a soldier and his wife married prior to the 
year 1885; were properly received in the Soldiers’ Home at Mar- 
shalltown and remained therein for considerable time as members. 
The husband, without the consent of the wife, asked for the dis- 
charge of both, and both were discharged. When this fact came to 
the knowledge of the wife, she protested and asked that she be re-, 
instated. It appears that she has not been provided with any 
home by the husband;’’ and requesting an opinion as to whether 
under the above facts she may now be reinstated; or in other words, 
as to whether the wife of a soldier, where both are qualified for 
membership, may be received into the Home or retained therein 
after admission if the husband be not a member of the Home. 

Under the facts stated by you, that both husband and wife are 
qualified for membership, and that both were duly and legally ad- 
mitted into the Home, I am of the opinion that she may now be 
received and reinstated considering that she is dependent and that 
her husband neglects or refuses to furnish her a home, notwith- 
standing that the husband prefers to remain away from the Home. 

Section 2601 of the Code; 

Section 2602, Supplement to the Code, 1907. 

Respectfully, 
GEORGE Cosson, 
Attorney General of Iowa. 
August 3, 1911. 
HONORABLE BOARD OF CONTROL 
OF STATE INSTITUTIONS. 


10 ATTORNEY GENERAL’S OPINIONS 


ScHOOLS.—School corporations may legally adopt or change text 
books without advertising for bids, but must advertise for bids 
when they purchase text books either for cash or exchange. 


Sir :—In yours of the 13th inst. you request an opinion upon the 
following question: 


‘‘Can the school board of cities, towns, or any school cor- ~ 
poration, under sections 2824 to 2837 legally adopt text books, 
change text books and contract for the same without adver- 
tising for bids?”’ 


The question as written really embraces three distinct matters, 
and might be subdivided as follows: . 

1st. Can the school corporation legally adopt text. books, with- 
out advertising for bids? 

2nd. Can it charge text books without advertising for bids? 

3rd. Can it contract for the same without advertising for bids? 

Clearly, there is no reason or necessity for advertising for bids: 
in connection with the adoption of text books, as provided in Code 
section 2824, nor would there be any reason or necessity for adver- 

tisement for bids, in order that a change in books may be made in 
~ accordance with the provisions of Code section 2829. 


Where, however, it is sought to purchase books already adopted, 
whether they are to be paid for in cash or part cash and the re- 
mainder by the exchange of old books, as provided in Code section 
2826, then and in each instance the contract of purchase or ex- 
change should not be made until bids have been advertised for and 
made in accordance with Code section 2828. 

Respectfully submitted, 
GEORGE Cosson, 


Attorney General of Iowa. 
September 15, 1911. : 


Hon, A. M. DEYOE, 
Superintendent of Public Instruction. 


CALENDAR YEAR.—The words ‘‘in any one year’’ mean a calendar 
year. 


GENTLEMEN :—I am in receipt of your communication of the 
21st instant requesting an opinion as to the meaning of the words 


ATTORNEY GENERAL’S OPINIONS 11 


‘‘in any one year’’ as found in section 2489-c Supplement to the 
Code, 1907. 

Personally I am of the opinion that it was the legislative intent 
in using the phrase ‘‘in any one year’’ in our statute to mean a 
period of twelve months, unless there was something in the context 
clearly indicating that a fiscal or calendar year was intended; but 
our supreme court in the case of Sawyer vs. Steenman, 126 N. W., 
page 1123, held that the phrase ‘‘in any one year’’ meant the year 
of our Lord and therefore a calendar year. . There was a dissenting 
opinion filed in this case. The majority opinion, however, having 
announced this rule of law, it becomes my duty to follow the 
ruling of the supreme court and I therefore in answer to your 
inquiry hold that the words ‘‘in any one year’’ mean a calendar 
year. 

Respectfully submitted, 
GEORGE Cosson, 
Attorney General of Iowa. 
September 22, 1911. 


HONORABLE EXECUTIVE COUNCIL 
OF THE STATE oF IOWA. 


CouNTY SUPERINTENDENT.—A special primary state certificate is- 
sued under section 2630-b of the Code Supplement does not 
render the holder eligible to the office of county superintendent 
under Code section 2734-b. To be eligible, the party must 
have a first grade certificate, a state certificate or a life diplo- 
ma, as provided by the last section. The state superintendent 
cannot obtain at the expense of the county superintendent a 
special report unless the report is one required by law to be 
made by the county superintendent. Code Supplement, sec- 
tion 2622. 


Sir:—In yours of the 26th ultimo you propound the following 
question : 

‘Will a special primary state certificate, issued under sec- 
tion 2630-b, Supplement, enable a candidate to qualify for the 
office of county superintendent under section 2734-b, Supple- 
ment ?”’ 


12 ATTORNEY GENERAL’S OPINIONS 


The first section to which you refer provides: 


‘‘The educational board of examiners may issue a special 
certificate to any teacher of music, drawing, penmanship or 
other special branches, or to any primary teacher, of suffi- 
cient experience who shall pass such examination as the board 
may require in the branches and methods pertaining thereto 
for which certificate is sought. Such certificate shall be desig- 
nated by the name of the branch and shall not be valid for 
any other department or branch.”’ 


The last section referred to in your inquiry reads: 


‘“The county superintendent, who may be of either sex, 
shall be the holder of a first grade certificate as provided for 
in this act, or of a state certificate or a life diploma.’’ 


It would seem to be clear that the special certificate mentioned in 
the first section quoted is in no sense either a first-grade certificate 
or a State certificate, and hence, this inquiry should be answered in 
the negative. 


Your second question is: 


‘“Can the Superintendent of Public Instruétion send a rep- 
resentative to secure a special report, which he deems neces- 
sary, requested of a county superintendent, but which the 
county superintendent neglects or refuses to give? If so, must 
the county superintendent defray the expenses of such repre- 
sentative ?’’ 


Code Supplement, section 2622, provides: 

‘“When any county superintendent fails to make any report 
as required of him by law, the superintendent of public in- 
struction may appoint some suitable person to perform such 
duties and fix reasonable compensation therefor, which shall 
be paid by the delinquent county superintendent.’’ 


Hence, it will be observed that the county superintendent would 
not be required to pay the expense of procuring a special report 
which was deemed necessary by the state superintendent, but only 
such ‘‘report as required of him by law.”’ 

If the delinquent report was one required by law, then the 
expenses of the representative in procuring the same should be 
paid by the delinquent county superintendent. » 

Respectfully yours, 
GEORGE COssoN, 


Attorney General of Iowa. 
April 27, 1912. 


Hon. A. M. DEYOE, 
Superintendent of Public Instruction. 


ATTORNEY GENERAL’S OPINIONS 13 


PATENT MEDICINES—SALE OF.—One may sell patent medicines from 
his fixed place of business without being required to pay an 
itinerant vendor’s license. : 

January 4, 1911. 

Mr. M. F. McDErmor, 

Wilton, Iowa. 


Dear Sir: Replying to your inquiry will say that if the patent 
medicines are sold only from your fixed place of business, you 
would not be required to pay an itinerant vendor’s license, even 
though you deliver’ the medicines in connection with other com- 
modities after the same had been purchased at your fixed place of 
business. 

Yours truly, 
C. A. RoBsins, 
Special Counsel. 


DRAINAGE WARRANTS—INTEREST.Under code supplement section 
483 interest may be paid on drainage warrants. 


January 5, 1911. 
Hon. Herpert E. HADLey, 


Nevada, Iowa. 


DEAR Sir: I beg to acknowledge receipt of your favor of the 
3d instant referring again to your request of the 6th ultimo for an 
opinion from this office as to the right of the county treasurer to 
pay interest on drainage warrants presented to him and by him 
stamped unpaid for want of money, the board of supervisors hav- 
ing prior to the issuance of such warrants directed the county 
treasurer to pay interest thereon at the rate of six per centum per 
annum. 

From such investigation of the law bearing upon the question 
submitted as I have had the opportunity to make, I will say that 
the county treasurer under the circumstances recited would be 
authorized to allow interest on such warrants at the rate of five 
per centum per annum. I do not think the resolution of the board 
of supervisors is any authority for the treasurer to pay interest on 
drainage warrants. But under section 483, supplement to the code, 
1907, he would be authorized to pay interest on warrants properly 
drawn at the rate mentioned. 


14. ATTORNEY GENERAL’S OPINIONS 


Where drainage improvement certificates or drainage bonds are 
issued in connection with the establishment and construction of the 
drainage district, the board of supervisors is authorized to fix the 
rate of interest upon such securities at a rate not exceeding six 
per cent per annum, but this does not extend to drainage warrants, 
and if the holder of such a warrant as you describe is entitled to 
interest at all thereon, it is by virtue of the section of the supple- 
ment to the code cited. That section being general in its terms, 
and the county treasurer being the custodian of all drainage funds 
and which are paid out by him upon warrants issued by the 
county auditor, and drainage taxes being collected in the same 
manner as ordinary county taxes, it would seem to follow that no 
different rule would apply to such warrants in respect to the pay- 
ment of interest than apples to other warrants drawn upon the 
county treasurer. 

Yours very truly, 
N. J. LEE, 
Special Counsel. 


Pott Taxes—Wuo LiasLte.—In order to be lable for the 950¢ 
poll tax the party seized to be charged must have been at least 
21 years of age at the time the assessment was made, and one 
reaching that age after the assessment is completed and the 
books returned is not liable. One reaching the age of 21 years 
during the period within which labor upon the road is to be 
performed as road poll tax, that is between the first day of 
April and the first day of October, is liable for such tax. 
(Code supplement seetion 1550.) 


7 January 11, 1911. 
Mr. R. A. LAawHeap, 


Mt. Ayr, Iowa. 


Dear Sir: Replying to yours of December 29th with reference 
to the liability for poll tax of a person reaching the age of twenty- 
one years after January 1st of any year, will say that in my opin- 
ion in order to be liable for the fifty-cent cash poll tax, the party 
taxed must have been of the age of twenty-one years at the time 
the assessment is made by the assessor for this tax is levied on the 
returns made by him, and that a party who reaches the age of 
twenty-one years after the assessment is completed and the books 


ATTORNEY GENERAL’S OPINIONS 15 


returned, would not be liable for that tax. A different rule, how- 
ever, would apply to the road poll tax provided for in section 1550 
of the code supplement. There the provision is that all able bodied 
male residents of his district between the ages of twenty-one and 
forty-five shall be required to perform two days’ labor upon the 
roads between the first days of April and October of each year, 
and it is my opinion that if the party reaches the age of twenty- 
one years at any time during this period that he may be required to 
perform the labor or pay the penalty provided in section 1552. 
The. exemption provided by section 2209 of the code in favor of 
officers and soldiers, and also the exemption in favor of members 
of the fire company would apply in each instance. 
Yours truly, 
C. A. RoBBINs, 
Special Counsel. 


County ATTORNEY—EXPENSES WHILE ATTENDING COURT AT THE 
County SEAT WHEN Not His RESmDENCE.—Under code supple- 
ment section 308 the county attorney is entitled to actual ex- 
penses while attending to his official duties at places other than 
the county seat and other than his place of residence, but is 
not entitled to such expenses while attending court at the 
county seat when that is not his residence. 


January 20, 1911. 
County ATTORNEY CuHas. W. SCHOLZ, 
Guttenberg, Iowa. 


Dear Siz: Yours of January 14th asking for a construction of 
section 308 of the code supplement, 1907, and especially as to 
whether or not said section authorizes a county attorney to be reim- 
bursed for his actual expenses while attending to his official duties 
at the county seat when the county seat is not his place of residence, 
has been duly received. 

The statute is not very clear and I have been unable to find any 
decision that will throw any light upon the question pronounced ; 
however, an examination of the original statute section 11 of chap- 
ter 73 of the acts of the twenty-first general assembly reveals the 
fact that the provision was therein worded somewhat differently, 
the language being: ‘‘shall be entitled to his necessary and actual 
expenses incurred attending the discharge of his duty at a place 


16 ATTORNEY GENERAL’S OPINIONS 


other than his place of residence and the county seat, which shall 
be audited,’’ ete. The change of the present form was made at the 
time of the revision of the code, that part of the section being re- 
written and shown on page 67 of the Black Code, but while the 
language was rewritten, there was no intention to change the com- 
pensation of the county attorney as is indicated by the language 
shown at page 5 of the code commissioners’ report, wherein they 
used the following language: ‘‘No changes in * * * compensa- 
tion of county officers have been recommended though in a few 
instances there are changes as to fees to be charged and sucli fees 
are to be accounted for by the officer receiving them.”’ 

So that on the whole I am of the opinion that the statute as it 
now reads should be construed as though it read ‘‘at a place other 
than his residence and other than the county seat’’ and it neces- 
sarily follows that if this is the correct construction that the county 
attorney would not be entitled to expenses while attending his of- 
ficial duties either at the place of his residence or at the county 
seat. 

You will understand that it is not the duty of this office to render 
official opinions except to certain state officers, but out of courtesy 
to you I have given my personal views on the matter. 

Yours wery truly, 
C. A. Rossing, 
Special Counsel. 


CITIES—UNDER COMMISSION ForM oF GOVERNMENT—ASSESSOR.—A 
city council under the commission form of government has the 
right to select the assessor under code supplement section 1056- 
a26, and to terminate the offices in force prior to their election 
to council under code supplement section 1056-a20; and where 
this has been done the assessor thus chosen rather than the as- 
sessor of the township in which the city is located is the law- 
ful assessor for the city. 


January 23, 1911. 
Mr. THEODORE A. CRAIG, 


Keokuk, Iowa. 


DEAR Sir: Yours of the 19th calling my attention to your former 
letter of the 2d instant duly received, and will state that your 
former letter was received at a time when the office was changing 
hands and had been overlooked until receiving your second letter. 


ATTORNEY GENERAL’S OPINIONS ny: 


In your first letter you state that John A. Dimond was elected 
as assessor in Jackson township inside the city of Keokuk which is 
a township having the same boundary as the city, and that subse- 
quent to the election the city council (Keokuk being under the 
commission form of government) elected S. H. Johnson as city 
assessor. The question now rises whether the city assessor in the 
city of Keokuk should also act as township assessor and whether 
his selection by the city council entitles him to act, the substance 
of your inquiry being as to which of the two parties so chosen is 
rightfully entitled to the office of assessor. . 

Assuming that prior to the election in November, 1910, the 
boundaries of Keokuk coincided with the boundaries of Jackson 
township, I am at a loss to know why a township assessor was 
elected, as the law only contemplates the election of a city assessor 
in such cases. See code sections 647 and 648; also section 650 
which provides that the term of office of the assessor shall com- 
mence on the first day of January next ensuing his election. 

It is only in townships where the boundary lines thereof include 
territory other and in addition to that included within the corporate 
limits of the city or town, that a township assessor is also to be 
elected. Code section 565 as now amended by chapter 37, acts of 
the thirty-third general assembly. So that it occurs to.me that the 
assessor which you say was chosen by Jackson township at the elee- 
tion in November, 1910, was in all probability an assessor elected 
by the city of Keokuk rather than by Jackson township, but be that 
as it may, the city having adopted the commission form of govern- 
ment, its council had the right to select the assessor under code 
supplement section 1056-a26, and also had the right to terminate 
the office in force prior to their election to the council under code 
section 1056-a20. Assuming that they have so done, the assessor 
of their selection would be entitled to and should perform the 
duties of the office. 

Yours truly, 
C. A. Rossins, 
Special Counsel. 


18 ATTORNEY GENERAL’S OPINIONS 


JUSTICES OF THE PEACE—FrESs FoR MarriaGE CerEMoNY.—While 
a justice of the peace who performs a marriage ceremony 
is not required to charge the $2.00 fee allowed by law there- 
for, yet 1f he does make this charge it is on account of the 
service rendered in his official capacity and he should account 
for same under provision of code supplement section 4680. 


January 25, 1911. 
Mr. CuHas. J. Haas, 
Marion, Iowa. 


Dear Siz: Yours of December 28th addressed to the attorney 
general has been handed to me for reply, and while as you are 
aware that it is not the duty of this office to render official opin- 
ions except to certain state officers, will say that I have given 
the matter some little attention and made some examination of 
the authorities, and while I have been unable to find any decisions 
of our own supreme court, I call your attention to the case of 
Austin vs. Johns, 62 Texas, 182, where by an ordinance it was 
provided that an attorney was to have ten per cent of all moneys 
collected by him, and also certain fees for actions brought 
by him, and it was held that he was entitled to the ten per 
cent of the moneys collected in addition to the fee provided in 
civil as well as criminal eases; also the case of. Calloway vs. 
Henderson, 24 8. W., 487, where under a statute providing that 
the county clerk should render to the county court a statement 
of fees received and salaries paid deputies and assistants, and 
that the aggregate amount any clerk should retain for his sery- 
ices for any one year was eighteen hundred dollars, it was held 
that such settlement of the clerk must include ‘‘all fees for all 
services of whatever character done in his official capacity’’ and 
that he could not retain an additional four hundred dollars re- 
ceived in connection with his duties in keeping accounts between 
the treasurer and the county. 

See also Board of Commussioners of Hennepin Co. vs. Dickey, 
90 N. W., 775, where it was held that the clerk’s salary fixed. 
should be in full for all services rendered in his official capacity, 
and that where he had during office hours furnished reports with 
reference to judgments and other hens entered in his office to 
abstract companies and commercial agencies, which reports were 
not authenticated, it was held that he was required to account 
for moneys received from the abstract companies and commercial 


ATTORNEY GENERAL’S OPINIONS 19 


agencies for these reports even though he could not have been 
required to furnish the information except by furnishing an 
authentic copy of the record, so that on the whole I am inclined 
to the opinion suggested by you, that while the justice of the 
peace who performs the marriage ceremony is not required by 
statute to charge and collect the two-dollar fee, the statute read- 
ing ‘“‘any person authorized to solemnize marriages may charge 
two dollars in each ease for officiating and making returns,’’ yet 
if he does make this charge it is on account of services rendered 
in his official capacity and he should account for the same under 
the provisions of section 4680 of the code supplement 


Yours truly, 
C. A. RoBBINs, 
Special Counsel. 


PEDDLERS—HvucKsTERS—F'RUIT AND WEGETABLES.—A peddler in- 
cludes transient merchants and itinerant vendors selling by 
sample or taking orders for future or immediate delivery. Code 
Supplement section 1347-a. To consitute an itinerant ven- 
dor it is not necessary that the person should travel all the 
time and have no fixed place of sale. Huckstering is carried 
on by persons who go from house to house buying from 
the farmer and selling either to customers or dealers at 
wholesale or retail. Timothy seed thus purchased and sold 
is a fruit as well as a vegetable and hence comes within the 
exception and one engaged in buying and selling the same 
is not required to have a license. 

January 27, 1911. 

Mr. H. J. MAntz, 

County Attorney, 


Audubon, Iowa. 


DeEaR Sir: Yours of the 24th instant addressed to the attorney 
general has been referred to me for reply, and your question briefly 
stated is whether or not a farmer residing in your county who is 
a part of the time engaged in handling, buying and selling grass 
seed at public sales and other public gatherings by taking orders 
for future as well as immediate delivery, the seed being bought in 
large quantities and retailed to customers at various places, he hav- 


20 ATTORNEY GENERAL’S OPINIONS 


ing no regular place of business where the seeds are stored or kept 
for sale or displayed, is a peddler within the purview of section 
1347-a code supplement. 


It will be seen by an examination of this section that the term 
‘“peddler’’ shall be held to include and apply to all transient 
merchants and itinerant vendors selling by sample or by taking 
orders whether for immediate or future delivery. 


Our supreme court has said: 


‘““We do not understand that the term ‘transient mer- 
chant’ has reference to the residence of the individual. * It 
more properly relates to the character of the business carried 
on by him.”’ 


Ottumwa v. Zekind, 95 Towa, 624. 


The defendant in that case being a non-resident of the plaintiff 
city, so that it would seem that the farmer in the case supposed 
by you would be a transient merchant within the meaning of 
this section. 


Our court has also said: 


‘“To constitute an itinerant vendor it is not necessary that 
the person should travel ‘all the time and have no fixed place 
of sale. He may have a place of business where he sells his 
goods during a part of the time and he may travel for the 
sale of his medicines at other times.”’ 


Snyder v. Closson, 84 Iowa, 186. 


So that it would seem that the party you have in mind would 
also be an itinerant vendor within the meaning of the law, and 
if he is either a transient merchant or an itinerant vendor, he > 
would come within the statutory definition of the word ‘‘peddler’’ 
as defined in this section; however, it remains to be seen whether 
or not he would come within any of the exceptions provided for 
in the latter part of the section. 


While you say nothing in your letter about his making use 
of a wagon to transport the seed from the place of purchase to 
the place of sale or delivery, yet I presume that this must of 
necessity be the method of transportation employed, and if so, 
the question would arise whether or not he would be running 
a huckster wagon within the meaning of the section. The term 


ATTORNEY GENERAL’S OPINIONS 21 


‘‘huckster’’ signifies a petty dealer and a retailer of small articles 
of provisions, ete. Webster’s Dictionary. . 


‘“‘Huckstering is defined to be a business carried on by 
persons who go from house to house buying from the farmer 
and afterwards selling either to customers or to dealers at 
wholesale or retail.’’ 


Cye. Vol. 21, page 1116. 


And it would seem that this definition would be broad enough 
to cover the business in which the farmer you mention is engaged. 
If he could be held to be selling or distributing fruit or vegetables 
he would come within the exception. 


‘‘Fruit is the natural product of trees, bushes or other 
plants.’’ 


Anderson’s Law Dictionary. 


‘‘Fruit is the produce of a tree or plant which contains 
the seed. This term in legal acceptation is not confined to 
the produce of trees which in popular language are called 
fruit trees.’’ 


Bouvier’s Law Dictionary. 


The term ‘‘vegetable’’ has been held to apply to and cover 
beans in either dry or natural state even though they would also 
come within the definition of seeds. 


Robertson v. Salamon, 130 U. S., 412. 


In view of these definitions and in view of the fact that it is 
doubtful whether or not the legislators intended to prohibit 
promiscuous dealing in farm products, it is my judgment that 
the court would hold that the party would come within one or 
more of the exceptions mentioned in the latter part of this sec- 
tion and would therefore not be required to take out a license. 

Yours very truly, 
C. A. Rossins, 
Special Counsel. 


22 ve ATTORNEY GENERAL’S OPINIONS — 


JUSTICES AND CoNSTABLES— TRIAL Fre In Derautr Cases.— 
Neither the justice of the peace nor constable is entitled to 
a trial fee in a civil default case as there would be no trial — 
within the meaning of the law. 


Mr. Jas. D. DuNuLAvyY, January 28, 1911. 
Harlan, lowa. 


Dear Sir: Yours of the 24th inst. addressed to the attorney 
general has been referred to me for reply 

Your first question is, ‘‘Are the justice and constable per- 
mitted to charge and collect a trial fee in civil default cases?’’ 
Your second question is, ‘‘Where a prisoner pleads guilty are 
they then allowed the one dollar trial fee as part of the costs?”’ 
Answering the first question, will say that neither the justice nor 
constable would be entitled to trial fee in civil default cases, as 
there would be no trial within the meaning of the law. Answer- 
ing the second question, will say that section 4598, subdivision 
14, allows the constable for attending each trial in a criminal 
case one dollar, and I am of the opinion that if in a criminal case 
the constable is notified to attend and does attended for the pur- 
pose of trial and the defendant at the time assigned for trial 
enters a plea of guilty, that the constable would still be entited 
to the trial fee. However, I do not believe he would be entitled 
to this trial fee if the defendant when first arrested and arraigned 
enters the plea of guilty, and I think the same rule should apply 
in the case of a justice where the case is assigned for trial on a 
particular day and he attends for the purpose of that trial. The 
fact that the defendant may change his mind and enter a plea 
ef guilty ought not to deprive the justice of the trial fee, pro- 
vided for in paragraph 21 of section 4598, yet the justice would not 
be entitled to this fee if the defendant when first arraigned before 
him entered the plea of guilty, for then the fee would be gov- 
erned by subdivision 7 of section 4597. 

Your third question with reference to the taxation of fees for 
three game wardens and only one filed the information, I am 
unable to answer without having further facts before me than 
those stated in your letter. If the others were summoned as 
witnesses and attended for that purpose, it is possible they would 
be entitled to a fee also. However, I would suggest that you 
take the matter up with your county attorney and be governed 
by his advice, as this department is not authorized to give opinions 
except to state officers and the foregoing are simply the personal 
views of the writer. 

Yours truty, 
C. A. Rossing, 
Special Counsel. 


ATTORNEY GENERAL’S OPINIONS | 23 


SHERIFF—AGENT OF THE STATE IN REQUISITION MATTERS—MAY 
RETAIN MILEAGE.—Since the enactment of chapter 35, acts of 
the thirty-third general assembly, a sheriff who acts as an 
agent of the state is not required to account for the mileage 
earned under section 5169 but may retain the same. 


February 6, 1911. 
Mr. Lee N. Dowlis, 


Centerville, Iowa. 


Dear Sir: Yours of the 1st instant addressed to the attorney 
general has been referred to me for reply. 

Your question in brief is whether or not the sheriff as the 
agent of the state under section 5169 of the code is entitled to 
retain the milsage therein specified in addition to his salary, or 
must he account for the same? 

It will be observed by an examination of this section that it is 
no part of the official duty of the sheriff to act thereunder; any 
other person may be the agent as well as the sheriff. 

I also call your attention to chapter 35 of the acts of the 
thirty-third general assembly amending section 510-a of the code 
supplement, and in my judgment the effect of this last amend- 
ment is to relieve the sheriff from the duty of accounting for 
mileage either in civil or criminal cases. | 

My opinion is that in view of these statutes the sheriff is entitled, 
to retain the mileage under section 5169, and is not required to 
account therefor. 


Yours truly, 
C. A. ROBBINS, 


Special Counsel. 


NATIONAL BANKS—LOAN AND TRUST COMPANIES—ASSESSMENT OF.— 
Real estate belonging to national banks should be assessed at 
its real value the same as other real estate. The capital stock 
in such banks should be assessed at its real value rather than 


its par value. 


February 10, 1911. 
Mr. J. Sip ANDERSON, 


Waterloo, Iowa. | 
Dear Sie: Yours of the 7th inst. addressed to the attorney 
general has been referred to me for reply. I cannot however com- 
ply with your request to compute the amount to be assessed to 


24 ATTORNEY GENERAL’S OPINIONS 


national banks, the loan and trust companies and the state savings 
banks in the instances which you cite for these reasons: 

First. I take it that you have listed the capital stock at its par 
value, rather than at its real value. 

Second. The time required to compute the tax in each instance 
would be such a draft upon the time of this office that we could not 
undertake it in any given case. 

However, I will say that the real estate in each instance should 
be assessed the same as other real estate. The surplus and un- 
divided earnings the same as other property of the kind. The 
capital stock should be assessed at its real value, in other words, if 
a share of $100.00 par value was worth 150 cents on the dollar, it 
should be assessed at its real value rather than its par value, and 
from the capital stock in each instance should be deducted the 
amount of capital invested in government bonds, if any. 

I note your position that no act of the present legislature will 
have any effect on the present assessment of bank stocks. Some 
courts have held that the legislature has power to pass a law and 
make it applicable to an assessment then being taken, and will say — 
for your information that there are bills now pending in the present 
legislature, designed to furnish an immediate remedy, whether they 
will pass or not of course cannot now be determined, but I would 
suggest that the assessment of all bank stock and loan and trust’ 
companies be deferred, if possible, until it is ascertained whether 
or not these laws pass, and whether they will afford any immediate 
relief. 

You will understand that this department is not authorized to 
give official opinions except to state officials and that the foregoing 
is simply the personal opinion of the undersigned. 

Yours very truly, 
C. A. Rospins, 
Special Counsel. 


Iowa Nationa Guarp—Mempers Exempt From Porn Tax.— 
Members of a national guard are exempt from payment of poll 
tax only during their term of service. 


February 11, 1911. 
Mr. WILLIAM SEALS, 


Creston, Iowa. 
Dear Sir: Your of February 5th addressed to the attorney 
general has been referred to me for reply. 


ATTORNEY GENERAL’S OPINIONS 25 


Inasmuch as you state in your letter that you have been dis- 
charged from the Iowa national guard, the fact that you were once 
a member of the guard, will not exempt you from the payment of 
poll tax. 

Code section 2209 exempts members of the guard from such tax 
only and during their term of service. Code section 891, however, 
requires only able bodied men to work or pay poll tax, and pro- 
vides that a party may obtain exemption by filing his affidavit 
setting forth his disability, and if the sunstroke of which you speak 
has disabled you, the filing of such affidavit would doubtless secure 
your exemption. 

You will understand that it is not the duty of this department to 
give official opinions to private persons and that what has been said 
is only the personal view of the undersigned. 

I return herewith the governor’s letter as requested. 

Yours truly, | 
C. A. RosBBIns, 
Assistant Attorney General. 


CLERK OF THE District CourT—F EES IN NATURALIZATION MATTERS 
—Must BE AccouNTED For.—Fees received by a clerk of the 
district court in connection with the performance of his duties 
in naturalization matters should be accounted for by him the 
same as other fees received for official duties performed. 

February 28, 1911. 

Mr. FRANK L. May, 

County Attorney, 
Lansing, Iowa. 
Dear Sir: Your letter of the 10th inst., addressed to the at- 
torney general, has been referred to me for investigation and reply. 
You state the question upon which the opinion of this depart- 
ment is desired as follows: 


‘*Must the clerk report the fees collected from naturalization 
matters, to the board of supervisors and pay said fees to the 
county? Or, do the fees so obtained belong to the clerk as 
compensation from the federal government for his labors ?’’ 


The proper solution of this question requires the consideration 
of the statutes of the United States, as well as of this state, bear- 
ing upon the question, and to some extent their history. 


26 ATTORNEY GENERAL’S OPINIONS 


Prior to the act of June 29, 1906, the statutes of the United 
States, bearing upon the naturalization of aliens, were contained 
in sections 2165-2174 inclusive of the revised statutes of the United 
States of 1878, which will be found printed at length on page 30 
of the Iowa Code of 1897. It will be observed that no provision 
is made with reference to clerks’ fees in either state or federal 
eourts, and the only portions material to this investigation are: 


Ist. ‘‘He shall declare on oath before a circuit or district 
court of the United States, or a district or supreme court of 
the territories, or a court of record of any of the states having 
common law jurisdiction and a seal and a clerk * * * * 
his intention to become a citizen of the United States,’’ ete. 
Sec. 2165. 


2d. ‘‘That the declaration of intention to become a citizen 
of the United States required by section 2165, may be made 
by an alien before the clerk of any of the courts named in 
said section.’’ (Added by act of February 1, 1876.) 


Section 13 of the act of June 29, 1906,°to which you refer, pro- 
vides: 


‘“That the clerk of each and every court exercising jurisdic- 
tion in naturalization cases shall charge, collect and account 
for the following fees in each proceeding: 

‘‘Hor receiving and filing a declaration of intention and 
issuing a duplicate thereof, one dollar. 

‘‘For making, filing and docketing the petition of an alien 
for admission as a citizen of the United States and for the 
final hearing thereon, two dollars; and for entering the final 
order and the issuance. of the certificate of citizenship there- 
under, if granted, two dollars. 

‘“‘The clerk of any court collecting such fees is hereby 
authorized to retain one-half of the fees collected by him in 
such naturalization proceeding; the remaining one-half of the © 
naturalization fees in each ease collected by such clerks, re- 
spectively, shall be accounted for in their quarterly accounts, 
which they are hereby required to render the Bureau of Im- 
migation and Naturalization, and paid over to such bureau 
within thirty days from the close of each quarter in each and 
every liscall year/2'% "(tu 

‘‘Provided, That the clerks of courts exercising jurisdiction 
in naturalization proceedings shall be permitted to retain one- 


ATTORNEY GENERAL’S OPINIONS 27 


half of the fees in any fiscal year up to the sum of three thou- 
sand dollars, and that all fees received by such clerks in nat- 
uralization proceedings in excess of such amount shall be ac- 
counted for and paid over to said bureau as in case of other 
fees to which the United States may be entitled under the 
provisions of this act. The clerks of the various courts exer- 
cising jurisdiction in naturalization proceedings shall pay all 
additional clerical force that may be required in performing 
the duties imposed by this act upon the clerks of courts from 
fees received by such clerks in naturalization proceedings.’’ 


The sections of our Code, to which you refer, have contained 
their present provisions since 1894 and provide as follows: 


Section 297. ‘“‘The clerks of the district courts shall receive 

as full annual compensation for all services the following :”’ 

(Amounts to be fixed by the board of supervisors, with a 
maximum limit graded according to population. ) 


Section 296 provides: 


Par. 23. ‘‘For declaration of intention by an alien to be- 
come a citizen, twenty-five cents.”’ 

Par. 24. ‘‘For all services on naturalization of alien, in- 
cluding oaths and certificates, fifty cents.’’ | 

Par. 30 (last line). ‘‘All of which fees shall be paid into 
the county treasury.’’ 


Consideration should also be made of section 299, which provides: 


‘‘The clerk of the district court shall report to the board 
of supervisors of his county at each reguiar session, a full 
and complete statement of the amount of fees received by him, 
which shall be verified by his affidavit, and pay such fees into 
the county treasury as hereinbefore provided.’’ 


It will be observed that at the time of the enactment of para- 
geraphs 23 and 24 above referred to, there was no United States 
law fixing the fees to be charged in such cases, either by clerks 
in the state courts or in the United States courts, and it had been 
held, notwithstanding the provision of the United States statute, 
section 833, which provides that every clerk of the district court 
shall on the first days of January and July in each year make 
to the attorney general a written return for the half year end- 
ing on said days, of all the fees and emoluments of his office of 
every name and character; that neither the clerk of the United 


28 ATTORNEY GENERAL’S OPINIONS 


States court nor his bondsmen were liable for moneys which he 
had received in naturalization matters, none of which were in- | 
cluded in his returns above provided for. United States vs. Hill, 
120 U.8., 169. See also United States vs. McMillan, 165 U.8., 504, 
which was decided in 1897, eleven years later and was to the same 
effect. In the first cited case it was shown by the agreed state- 
ment of facts, and referred to as significant by the court, “‘that 
the clerks of the courts of Massachusetts under a fee-bill much like 
ours, and a statute requiring them to make to the county treasurer 
yearly a return of all fees received by them for their official acts 
and services’’ were never required to include in their returns the 
fees received in naturalization cases. This was changed by the 
(Mass.) act of 1879, C300, which defined what the fees in such 
eases should be and directed the clerks to include them in their 
returns. 

So it would seem that inasmuch as clerks were not under the 
old law required to account for these fees, that the provision of 
the new law permitting the clerk ‘‘to retain one-half of the fees col- 
lected by him’’ should be construed as meaning that he might re- 
tain the same in his individual capacity rather than in his capacity 
as clerk (where he is clerk of a state court). This provision, in 
my judgment, had the effect of abrogating paragraphs 23 and 24. 
of 296 of our code above referred to and leaves the amount of the 
fee as fixed by the federal statute. 

It may be said, however, that the state would have the power 
to require its officer (clerk in this case), to account for the fees 
received by him even though for the performance of some duty 
not imposed upon him by the state, but, as in this case, by the 
United States, and even though it were for some service outside 
of his official duties, and that hence the clerk should account. to 
the county for the one-half of these fees which the United States 
law permits him to retain in view of the fact that his compensa- 
tion is on a salary basis. 

The courts have gone at great length along this line, our own su- 
preme court holding that the clerk must account, under the gen- 
eral provision requiring such accounting, for fees earned by him 
as a member of the insane commission. Moore vs. Mahaska Co., 
61 Iowa, 177. 

And by the supreme court of Missouri that the clerk should ac- 
count for fees earned in keeping accounts between the county treas- 
urer and the county. 


Calloway vs. Henderson, 24 8. W., 487. 


ATTORNEY GENERAL’S OPINIONS 7 29 


And by the supreme court of Minnesota, that the clerk should 
account for fees received for reports furnished abstractors and 
commercial agencies, although unauthenticated. 


Hennepin Co. vs. Dickey, 90 N. W., 775. 


And by the supreme court of California, that he must even 
account for illegal fees collected by him. 


People vs. Hamilton Co., 37 Pac. 627. 


And by the supreme court of Nebraska, that he must account 
for fees earned in taking acknowledgments, ete., when he was also 
a notary public and acted as such. 


State ex rel Frontier Co. vs. Kelley, 46 N. W., 714. 


And in cases more nearly like the one under consideration, the 
supreme court of Oklahoma held that a probate judge should ac- 
count for fees earned by him in townsite matters, even though in 
these matters he derived his powers from an act of congress. 


Finley vs. Femtory, 73 Pac., 278. 
In this case the court says: 


‘The contention of plaintiff in error that the probate judge, 
while acting in town-site matters, is a separate and distinct 
office, is not well founded. The authority conferred in town- 
site matters by congress was an additional power and juris- 
diction delegated to the probate courts of this territory. Con- 
gress conferred this power upon the office, and not on the 
individual, and congress did not thereby create a separate and 
distinct office. Can it be said that when the probate court 
exercises the powers and jurisdiction of a justice of the peace 
he is, while performing such duties, a justice of the peace? 
Or can it be said that when he exercises the jurisdiction of a 
district court in the trial of certain civil causes he is a dis- 
trict judge? Or can it be said that when he is acting in town- 
site matters he is a judge of the United States court, or an 
officer of the United States? These questions must be an- 
swered in the negative. * * * * 


‘‘The legislature of this territory has the undoubted power 
to fix the fees and salaries of the probate judges, and to re- 
quire them to report and account for all fees received by 
them. And this is what our legislature has done. * * * #* 


30 


ATTORNEY GENERAL’S OPINIONS 


‘‘He shall at the time of making such report, pay into the 
county treasury all moneys received as fees during the three 
months immediately preceding the date of filing of said re- 
port in excess of one-fourth of the amount allowed by law as 
the annual salary of the probate judge; provided, that should 
the amount of fees received by the probate judge during any 
quarter be less than the amount allowed to him as his salary 
for said quarter under the provisions of this act, such defi- 
ciency may be made up out of the excess of his receipts from 
fees over the amount of his salary during any quarter of his 
term or terms of office.’’ . 


Section 15 of said act provides: 


‘“Any probate judge who shall fail to make a quarterly re- 
port under oath as herein required, shall forfeit to the county 
twenty-five dollars for each day he shall wilfully fail so to 


do, to be recovered from his bondsmen, as in other eases. 


“Tn the light of these various statutory provisions, it clearly 
appears that the office of probate judge is purely a fee office, 
that he is required to keep a strict and accurate account of 
all fees received and charged by him, and that he is entitled 
to retain from such fees the maximum salary allowed by law, 
and the excess, if any, he is required to pay into the county 
treasury. : 

‘“There is no question in this case as to the schedule of fees 
to be charged by the probate judge, or whether the amounts 
collected by him are the fees authorized to be charged by law, 
and there is no question as to whether the fees collected by 
him were legal or illegal. The law authorizes the probate 
judge to charge a specific fee for every official act he performs 
by virtue of his official position; and where specific fees are 
not fixed by law, then he shall be entitled to receive therefor 
the same fee as may be by law allowed to district clerks for 
like services, and when received or charged, such fees must 
be entered in the book required for that purpose, and this 
without regard to the purpose for which the act was per- 
POMEL ee OF 

‘‘But it is contended that the statutes make no provision 
for charging a fee in town-site matters, and since no fee is 
provided for by law, that the probate judges are not required 


ATTORNEY GENERAL’S OPINIONS 615 


to report and account for any compensation that they may 
have received for performing such extra services. This con- 
tention we think is untenable * * * * 

‘‘But it is contended that the term ‘fees’ does not include 
compensation or charges received for services while acting in 
town-site matters. We do not think so. We think the word 
‘fees’ as used in our statutes, clearly includes all compensa- 
tion or charges received by the probate judge by virtue of his 
office. And this view of ours is sustained by the authorities. 
% * *% * 

‘‘The statute fixing the compensation for probate judges 
embraces every possible fee, compensation or emolument ac- 
eruing to the probate judge by virtue of his office, and does 
not permit him to withhold any of them. The test is, what- 
ever is done by such probate judge that could not be done by 
him as a private individual, and when not exercising the 
powers and duties.of his office, is clearly within the purview of 
the statute requiring him to report and account for all fees 
and emoluments received by him. * * * * 

‘*But it is argued by counsel for plaintiff in error that the 
duties devolving upon the probate judge in respect to town- 
site matters necessarily involve a vast amount of labor, and 
that it 1s not contemplated that he should bear the burden, 
worry and expense of so onerous a duty without receiving just 
compensation for such additional labors. We think this ques- 
tion should be addressed to the legislative branch of our gov- 
ernment, and is not a matter for judicial interpretation.’’ 


In view of these authorities I am of the opinion that even though 
our present state statute no longer fixes the fees of the clerk in 
naturalization matters, yet under the general provision requiring 
the elerk to account he is reauired to account to the county for the 
one-half of fees in such matters which the federal laws permit him 
to retain. 


Respectfully submitted, 
C. A. Ropsins, 
Assistant Attorney General. 


32 ATTORNEY GENERAL’S OPINIONS 


County REcorDER—CoMPENSATION OF—No RicgHt To RETAIN OUT- 
SIDE COMPENSATION.—A county recorder must account to his 
county for compensation received from abstract companies and 
others to whom he furnishes material for their daily reports. 


March 1, 1911. 
Mr. WiLu1AM DENNIS, | 


Marion, Iowa. 


DEAR Sir: Your letter of February 23rd addressed to the at- 
torney general has been referred to me for investigation and reply. 

Your inquiry in brief is, as to whether or not the county recorder 
would have a right to retain compensation received by him from 
abstract companies and others to whom he furnished material for 
their daily reports. 

A question very similar to the one propounded arose in the case 
of Hennepin Co. vs. Dickey, 90 N. W., 775. 

The supreme court of Minnesota in stating this case, which was 
an action by the commissioners against the county clerk, used the 
following language: 


‘‘Respondent has been the incumbent of the clerk’s office 
since January 1, 1891. After he took possession he continued 
a practice previously in vogue, to furnish daily reports to 
abstract companies and commercial agencies located at Minne- 
apolis. These reports were made upon printed blanks pre- 
pared for that purpose. They contained the title of suits 
commenced, amounts ‘involved, as well as judgments entered 
and docketed, derived from an examination of the files and 
records and comprised the knowledge useful in furnishing ab- 
stracts of title and commercial reports. They were given out 
at stated times each day but without authentication.’’ 


What the clerk did was not done secretly. For this work the 
clerk received during the six years previous to the commencement 
of the action, a compensation agreed upon between him and those 
to whom the statements were furnished, aggregating several thou- 
sand dollars, which he has retained upon the claim that he had 
the legal right to the same. | 

The existing fee schedule provides the measure of compensation 
for clerks’ duties provided therein. The fees were to be collected 
and paid into the county treasury. From these sources the county 
derived a revenue taken from the clerk, but in lieu thereof he was 


to be paid a fixed salary. 


ATTORNEY GENERAL’S OPINIONS 33 


While the statute fixes no fee for such information as was given 
out, yet a fee was designated for copies and exemplifications of 
records and pleadings, and under the law in this state the recorder 
would have a right to charge a statutory fee for such copies. 

The court in that case, after an exhaustive consideration of the 
subject, concludes its opinion as follows: 


‘While respondent may not, perhaps, be criticised for fur- 
nishing the statements in the form and manner given to the 
agencies and abstract companies, yet he could not by a short 
cut or business arrangement of his own pursue a course that 
would dispense with copies or certificates, when such useful 
means might be an essential prerequisite to securing the knowl- 
edge desired by persons seeking the same. 

‘Tf copies, certificates, or searches where no copies were 
made would within any fair intention or expectation provide 
a means by which services of a clerk would be given to secure 
legitimate ends, it ought not to be evaded by any plan that 
would deprive the county of its revenues. 

‘“We are therefore required to adopt the conclusion that 
a proper legal view of the clerk’s duty to deal with the money 
thus received from the statements furnished to the abstract 
men and agencies, must be determined against his asserted 
rights to appropriate the same to his own use, upon the con- 
sideration that the statements were furnished in his official 
capacity and it was likewise the interest and the clear right of 
the county to have the compensation received therefor turned 
into its treasury; and it is of no significance that the specified 
fees provided for in the schedule were not in terms exacted, or 
even that more than legal fees had been received by the clerk; 
for, such services being official in character and having been 
voluntarily paid, whatever was so paid became a resource of 
the county and not a perquisite of the clerk.’’ 


And it has been held by the supreme court of California that 
where fees were collected by a clerk without legal authority but 
under cover of his office, that the fees belonged to the state and 
not to the officer. 


People vs. Hamilton Co., 37 Pae., 627, and 
People vs. Van Ness, 21 Pac., 554. 


34 ATTORNEY GENHERAL’S OPINIONS 


The reasoning made use of by the court in these cases applies 
with equal force to the case presented by you and I am therefore 
of the opinion that it is the duty of the recorder to account to the 
county for whatever compensation he has received from the ab- 
stract companies. 

Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


PRIMARY ELECTION—PERCENTAGE OF VoTES REQUIRED—TOWNSHIP 
OFFICERS.—The provision of the primary law requiring 35% 
of the votes cast for that office in order to nominate applies 
only to the offices to be filled by voters of a county and not 
to offices to be filled by voters of a subdivision of a county. 
Does not apply to township officers. 

March 2, 1911. 

Mr. F. E. PLUMLEY, 


Ralston, Iowa. 


DEAR Sir: Yours of February 22nd addressed to the attorney 
general has been referred to me for reply. 


You state your question as follows: 


“There are three trustees to be elected but four are voted 
for in the primary election, two of which are Democrats and 
two Republicans. Now as regards the two Democrats, one re- 
ceived one vote and the other received two, there being but 
three votes cast for the office on the Democratic primary ticket, 
which according to our understanding would not give the man 
with the one vote the right to appear on the general election 
ticket. 

‘“Now where our voters would like your ruling is in regard 
to how the Democrat that received but one vote had the law- 
ful per cent in order to get his name printed on the official 
ballot at the general election.’’ 


I assume that the percentage to which you refer does not have 
reference to the two per cent of the total vote cast at the general 
election in order to entitle the political party (Democrat in this 
case) to have its ticket appear on the ballot, as required by sec- 
tion 1087-a3 of the code supplement, but that the percentage you 


ATTORNEY GENERAL’S OPINIONS 35 


refer to is the thirty-five per cent of all the votes cast by the party 
for such office as mentioned in section 1087-a19, code supplement. 

A careful examination of this section will disclose the fact that 
this provision requiring the thirty-five per cent only applies to 
offices to be filled by the voters of the county and not to offices 
to be filled by the voters of a subdivision of the county. The pro- 
vision with reference to townships does not require any per cent 
of the total vote and reads as follows: } 


‘‘And the candidate or candidates of each political party for 
each office to be filled by the voters of any subdivision of a 
county, having received the highest number of votes, shall be 
duly and legally nominated as the candidate of his party for 
such office,’’? whereas, in county offices there is added the 
further provision: ‘‘and not less than thirty-five per cent of 
all the votes cast by the party for such office.’’ 


So it will be seen that no percentage of the total vote whatever 
is required to nominate in the case of township officers. Further- 
more, in the case supposed by you, each of the parties received the 
entire vote cast for that office. It is true that one received two 
votes and the other only received one vote, yet they were not can- 
didates for the same office, but each was a candidate for one of | 
the three places to be filled and each received the entire vote cast 
by his party for that office, and as the entire vote equals one hun- 
dred per cent, he had the thirty-five per cent and more, and was 
lawfully nominated and entitled to have his name printed on the 
ballot at the general election. 

Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


Roap TAx—CoLLEcTION or.—Where the road taxes are ordered 
paid in money it is the duty of the county treasurer to collect 
same along with the other taxes. 

March 11, 1911. 

Mr. Joun F. Datron, 

Manson, Iowa. 


DeEsR Sir: Yours of March 7th addressed to the attorney gen- 
eral has been referred to me for reply. 


36 ATTORNEY GENERAL’S OPINIONS 


Ist. Q. ‘‘Under the township road district plan, the road super- 
intendent is appointed by the trustees. Can he collect any road 
tax in money if residents do not work out said taxes?’’ 

A. It is the duty of the county treasurer to collect road tax 
when the trustees order the same to be paid in money instead of 
labor. See code section 1533, but where this order is not made and 
the party fails to work out his road tax, the superintendent may 
recover the statutory penalty of $3.00 per day, provided by section 
1552, but this he would recover as a penalty and not by way of 
collection of the tax. 

2nd Q. ‘‘Is there any fixed compensation for work with team, 
or rather for the work of the team, per day on the roads?”’ 

A. . No. 

3rd Q. ‘‘ What is the difference between the compensation for a 
man with a team and a man without a team, per day?’’ 

A. There is no difference. Where a man is working out poll 
tax and works with or without a team he is required to work the 
two days fixed by section 1550, and section 1535 requires eight 
hours work for a man, or man and team, to constitute one-of the 
day’s work required by section 1550. This should not be construed 
to apply to cases where the superintendent or other road author- 
ities employ men with teams, but only to cases where the party is 
working out his taxes. 
4th Q. ‘‘What is the fixed compensation for road superintend- 
ent with team? Without?’’ 

A. There is no fixed compensation for road superintendent with 
or without team, but the superintendent’s compensation is to be 
fixed by the trustees, and section 1533 code supplement requires it 
to be fixed not to exceed $3.00 per day, and no mention is made 
of superintendent having a team, so this compensation would be 
his compensation without team unless otherwise specified. 

oth Q. ‘‘If enforcement of the weed cutting law more than uses 
up the levy for that purpose, may said law be enforced and penal- 
ties inflicted ?’’ 

A. oes: 

6th Q. ‘“‘The law gives compensation of township trustees at 
$2.00 per day. Can the board of supervisors cut bill for their 
services when only $2.00 per day is asked for all time rendered, 
that is, and do so legally ?’’ 

A. No. 


~ 


ATTORNEY GENERAL’S OPINIONS — 37 


7th Q. ‘‘Has the board of supervisors set any fixed compensa- 
tion for the work of assessors and have they legal right to do so?”’ 

A. As to whether your board or any other board has fixed com- 
pensation for work of assessor, I do not know, but chapter 41 of 
the acts of the thirty-third general assembly provides: 


‘*HKach township assessor shall receive in full for all services 
rendered of him by law, a sum to be paid out of the county 
treasury, and fixed annually by the board of supervisors at 
their January session; said compensation shall be for the suc- 
ceeding year, and shall not exceed the sum of two and one- 
half dollars ($2.50) for each day of eight hours which said 
board determines may necessarily be required in the discharge 
of all official duties of such assessors, except in townships 
having a population of thirty thousand (380,000) or over, and 
situated entirely within the limits of a city acting under special 
charter, such compensation shall be four dollars ($4.00) per 
day.°? 

and this would not only give them the legal right but make it their 
duty to fix the compensation. 

8th Q. ‘‘Can promissory notes for the rent of land be legally 
classed as moneys and credits?’’ 3 

A. Yes. 

9th Q. ‘‘If taxable may they be offset by debts?”’ 

A. Yes. 

Yours truly, 
C. A. Ropsins, 
Assistant Attorney General. 


TAXATION—ASSESSMENT—MORTGAGE IN OTHER STATE.—A note held 
by a resident of this state should be assessed to him at his 
place of residence even though the same is secured by mort- 
gage on land in another state where such mortgage is also 


taxed. 
March 15, 1911. 


Mr. Levi TALHELM, 
Hampton, Iowa. 
Dear Sir: Your letter of the 14th inst. addressed to the attorney 


general has been referred to me for reply, and while this depart- 
ment is not authorized to furnish opinions to persons other than 


38 ATTORNEY GENERAL’S OPINIONS 


state officers, I will say for your information that our supreme 
court has held in the ease of Snakenberg vs. Stern, 126 Iowa, 650, 
that where moneys and credits had been assessed in the wrong 
county, they might also be assessed in the proper county, which 
was the county in which the owner of the note and mortgage re- | 
sided, and for this reason, I am of the opinion that the court would 
hold that the note secured by mortgage would, under the section to 
which you refer (see. 1313 of the code), be assessable to the party 
in this state at the place where he resides, even though he had been 
required to pay some tax on the mortgage where recorded in the 
other state. 
Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


ScHoot House Tax—Sratrure Fixing Tre or Levy Directrory.— 
Where the levy of a tax is authorized in manner provided by 
law but through negligence or mistake the levy is not made 
at the proper time a jévy made a year later is valid. 


March 15, 1911. 
Mr. DALE HUNTER, 
Westfield, Iowa. 


Dear Siz: Your letter of the 14th inst., addressed to the at- 
torney general, has been referred to me for reply. 


Your question in brief is: How to procure the levy of a school 
house tax, which was voted in March, 1910, and certified as re- 
quired by law, but through oversight the levy was not made by 
the county board of supervisors. 


There are two ways to remedy this matter, one way would be to 
have the board meet at this time, or before the legislature adjourns, 
make the levy and then have the legalizing act passed, curing the 
levy as against the defect of its being made after the time pre- 
scribed by law, as was done in the ease of C., R. I. &@ P. Railway 
Company vs. Independent District of Avoca, 68 N. W. (Iowa), 881. 

However, it would hardly be possible to have the tax thus levied 
spread upon the books and collected in such a way as to be avail- 


ATTORNEY GENERAL’S OPINIONS 39 


able this year, hence, I am inclined to think that the best remedy 
would be to follow the rule announced in the case of Perrin vs. 
Benson, 49 Iowa, 325, wherein it is held: 


‘*Tf the levy of a tax, which has been authorized in the man- 
ner provided by law, is not made at the proper time, through 
negligence or mistake, it may be made at the time fixed by law 
for making the succeeding tax levy. This section of the code 
prescribing the time and manner in which a school tax shall 
be levied is directory merely, and a failure of the board of 
supervisors to levy the tax in the time prescribed is not fatal 
thereto, and a levy made a year later is valid.’’: 


So that it would seem that all that is required would be to see 
that the levy is not overlooked, but is made by the board at its 
September meeting. 

Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


DELINQUENT TAX COLLECTOR—COMPENSATION OF.—The 5% com- 
pensation for delinquent tax collector provided by code sup- 
plement section 1407 should be collected from the delinquent 


and not from the county treasury. 
March 16, 1911. 


Mr. Howarp E. KIrtre.t, 
Audubon, Iowa. 


Dear Sir: Your letter of the 15th inst., addressed to the attor- 
ney general, has been referred to me for investigation and reply. 
You call for the opinion of this department as to the proper con- 
struction of code supplement section 1407, and say: 


‘Our delinquent tax collector has been charging the 5% 
commission on all delinquent taxes that he has collected, but 
one of the resident attorneys holds that he has no right to do 
that only in cases where he has to make a levy on property to 
get the tax.’’ 


I think the proper construction of the section authorizes the col- 
lection, by the collector, of the 5% from the delinquent in all cases 
where he makes the collection and pays over the proceeds. I do 
not believe the collector has authority to make distress and sale, 


40 ATTORNEY GENERAL’S OPINIONS 


but that when necessary to collect by distress and sale, the statute 
provides that the treasurer shall place the same in the hands of the 
sheriff or constable, who shall proceed to collect the same, and 
either shall be entitled to receive in addition to the 5% the same 
compensation as constables are entitled to receive for the sale of 
property, or execution, and in such eases the collector would not be 
entitled to the 5%, but this 5% would go to the sheriff or constable 
making the collection by distress and sale. It therefore follows that 
your view is the correct one and that the view of the local attor- 
ney, as expressed by you, is erroneous. 

You will understand that this department is not authorized to 
give official opinions, except to certain state officers, and that the 
foregoing is simply the personal view of the undersigned. 


Yours truly, 
C. A. Rossing, 


Assistant Attorney General. 


AUTOMOBILES—DEALER’S NuMBERS.—Where a dealer has a place 
of business in two or more distinct places he should have a 
dealer’s number and permit for each such place of business. 


March 18, 1911. 
Mr. OrvILLE A. HAMMOND, 


Spencer, Iowa. 


Dear Sir: Your letter of March 16th, addressed to the attorney 
general, has been referred to me for reply. Your questions are: , 

‘*1, Has the purchaser of an automobile a right to run his ma- 
chine by using the dealer’s number, or has he a right to run his 
machine after he has sent for a number, but before his number has 
been assigned to him ?’’ 

‘*2. If aman or firm have automobile sales rooms or liveries in 
two different towns, have they the right to use the same number 
in each town ?’’ 

The answer to both interrogatories will be found in chapter 103 
of the acts of the thirty-third general assembly. Section 4 pro- 
vides, that ‘‘no person shall operate a motor vehicle on the public 
street or highway without a number displayed as above provided, 
nor with any other number than that assigned to said vehicle by 
the secretary of state and registered in the name of the owner 
thereof.’’ The number of the automobile dealer would be regis- 


ATTORNEY GENERAL’S OPINIONS 41 


tered in his own name, and hence would not be a protection to the 
subsequent owner of the machine, so that your first interrogatory 
will have to be answered in the negative. 

Section 3 of the same chapter provides, that ‘‘where a dealer 
has an established place of business in more than one city or town, 
he shall procure a separate and distinct dealer’s number and per- 
mit for each such place of business,’’ so that your second mter- 
rogatory will also have to be answered in the negative. 

Yours very truly, 
C. A. Rossing, 
Assistant Attorney General. 


Pott Taxes.—Where the poll taxes are payable in labor upon the 
highways persons liable therefor are entitled to three days’ 
notice of the time and place they are required to work before 
they can be required to pay the same in money. 


March 23, 1911. 
WALLACES’ F'ARMER, 
Des Moines, Iowa. 


GENTLEMEN: Yours of the 20th inst., addressed to the attorney 
general, has been referred to me for reply. 

Your first question is: 3 

‘‘Ts the township road supervisor supposed to call out the farmer 
in his district to work his poll tax? Suppose he does not call on 
him, the farmer having time to work out the tax, can he be made 
to pay in cash? Can the road boss do as he pleases in this matter 
by neglecting to notify the farmer and then charge him $3.00 in 
cash?’’, and the answer thereto will be found in code supplement, 
section 1551 and code section 1552, which provides as follows: 


‘The road supervisor shall give at least three days’ notice 
of the day or days and place to work the roads to all persons 
subject to work thereon, or who are charged with a road tax 
within his district, and all persons so notified must meet him 
at such time and place, with such tools, implements and teams 
as he may direct, and labor diligently under his direction for 
eight hours each day; and for such two days’ labor the super- 
yisor shall give to him a certificate, which shall be evidence 


42 ATTORNEY GENERAL’S OPINIONS 


that he has performed such labor on the puble roads, and 
exempt him from performing labor in payment of road poll 
tax in that or any other road district for the same year. 

‘‘Kach person liable to perform labor on the roads as poll 
tax, who fails to attend, either in person or by satisfactory 
substitute, at the time and place directed, with the tools, im- 
plements or teams required, having had three days’ notice 
thereof, or, appearing, shall spend his time in idleness, or 
disobey the road supervisor, or fail to furnish him, within five 
days thereafter, some satisfactory excuse for not attending, 
shall forfeit and pay him the sum of three dollars for each 
day’s delinquency; and in case of failure to pay such forfeit 
within ten days, he shall recover the same by action in his 
name as supervisor, and no property or wages belonging to 
such person shall be exempt from execution therefor. Such 
action shall be before any justice of the peace in the proper 
township. The money, when collected, shall be expended on 
the public roads.’’ 


Your second question is: 


‘‘Tg there any law to compel the farmer to drag the road with- 
out pay?’’ The answer to this will be found in chapter 101 of 
the acts of the thirty-third general assembly, which provides as 
follows: 


‘“‘The township trustees shall have all the main traveled 
roads, including mail routes, in their townships dragged at 
such time as in their judgment is most beneficial, and they 
shall contract at their April meeting to have a given piece 
of road dragged at a rate not to exceed fifty cents per mile 
for each mile traveled in dragging. In choice of persons to 
do the work or in making contracts to do such work, prefer- 

ence shall be given, other things being equal, to the occupants - 

of the land abutting the road or adjacent thereto at the point 

where the work is to be done, but if more than one occupant, 

the trustees shall decide to which preference shall be given. 

* * * * No compensation shall be paid to any person for 

dragging roads winless the same be authorized by the township 
trustees and in the manner directed by them.’’ 

It follows that both your questions should be answered in the 

regative. 
Yours truly, 
C. A. RopsBins, 
raven Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 43 


DOMESTIC CORPORATIONS—ASSESSMENT OF CapiTaL StocK.—In the 
assessment of the capital stock of a domestic corporation the 
amount of its bonded indebtedness should not be added to its 
capital for the purpose of ascertaining the value of its prop- 
erty or the capital stock therein. 

March 25, 1911. 

Hon. Ben McCoy, 


Oskaloosa, Iowa. 


Dear Sir: Your letter of the 11th inst. addressed to the attor- 
ney general has been referred to me for reply. The extraordinary 
demand made upon this department by the members of the legisla- 
ture now in session, has made it impossible for me to give the mat- 
ter attention until now, and while this department is not author- 
ized to furnish an official opinion upon such a matter, yet I am 
perfectly willing to give you the benefit of my personal views. 


You state the matter, as to which there is a dispute between your- 
self and the taxing officers, as follows: 


‘‘T have one thought about the matter and the taxing 
officers have another. Let me illustrate by the round num- 
bers given. I seek to collect taxes on a domestic corporation 
capitalized at $250,000.00 paid in, invested in real estate and 
personal property not situated in Iowa. The corporation is 
bonded for $250,000.00, invested in the same way. It has a 
real estate assessment of $150,000.00. Under sections 1323 
and 13824, my thought is that the bonded indebtedness should 
be added to the capital, making $500,000.00, from which 
should be deducted the real estate assessed at $150,000.00, 
which would leave net assessment of $350,000.00. * * * * 
The auditor and treasurer insist under the language of sec- 
tion 1323 that the shares of stock of any corporation shall be 
assessed to the owners thereof at the place where its principal 
business is transacted, the assessment to be on the value of 
such shares on the first day of January in each year, and in- 
sist that the following is a correct method of arriving at the 
shares of stock for assessment. Taking a $250,000.00 capital 
corporation fully paid, with a bonded debt of $250,000.00 and 
an assessment on real estate of $150,000.00, with property 
tangible and intangible, including real estate of $500,000.00. 
They deduct the bonded debt from the amount of assets leav- 
ing $250,000.00 and deduct from that the assessed value of the 


44 ATTORNEY GENERAL’S OPINIONS 


real estate leaving $100,000.00 for assessment on the shares of 
stock to the individual stock holder under section 1323 of the 
code. You will readily note that the assessment is $250,000.00 
short of what we contend is the correct valuation for the pur- 
pose of assessment. ”’ 


On first blush it would appear to be a strange proposition that 
would require the indebtedness of a corporation to be added to 
its assets for the purpose of determining the value of its property 
and incidentally the value of shares of stock in such corporation. 
When we undertake to determine whether or not an individual is 
solvent, we ascertain the property which he has and deduct there- 
from his liability for the purpose of determining the net value of 
his property over and above liability, and I see no reason why this 
same rule should not apply in determining the value of a corpora- 
tion, and the value of a share of stock in a corporation is of course 
equal to its proportionate share of the property of such corporation. 

I have examined the Coggin ease to which you refer, and while 
it announces the rule as contended for by you, yet I am inclined 
to think that the decision is based upon a misapprehension of the 
Illinois statute. The Illinois statute requires among other things 
that the corporation shall state under oath ‘‘the total amount of 
indebtedness except the indebtedness for current expenses.’’ This 
statement and the other required by the statute are for the pur- 
pose of enabling the assessing officer to determine the value of the 
shares of stock in such corporation, and the court in that case, 
as well as other cases in that state, held that this required the in- 
debtedness to be added to the corporation stock, the very thing 
which I have stated would be an unlawful thing to do. However, 
it occurs to me that, in so deciding, the court assumed that the 
property procured with the bonded indebtedness was equal to such 
indebtedness, and instead of inquiring into the value of the prop- 
erty purchased with the proceeds of the bonded indebtedness, as- 
sumed that property to be of a value equal to the bonded indebted- 
ness, and hence added it to the value of the original property of 
the corporation, which would be approximately a correct method 
of ascertaining the value of its whole property, assuming that the 
property realized for the bonded indebtedness was worth what it 
cost and no more. 

If this be true then there is nothing seriously wrong with the 
rule in the Coggin case, provided however, that the bonded in- 


ATTORNEY GENERAL’S OPINIONS 45 


debtedness should then be deducted from the whole property in 
order to ascertain the net value of the corporation over and above 
its indebtedness. 

It will be observed that our statute 1323, while it requires many 
of the same matters to be stated as is required by the Illinois 
statute, yet does not require any statement as to the amount of 
indebtedness owed by the corporation. Yet in the very nature of 
things this is one of the matters that must be taken into account by 
the assessing officer in placing the value upon the property of the 
corporation or of shares of stock therein, and in the ease of the 
Illinois statute I think it was the design of the legislature in re- 
quiring this statement of indebtedness to be made not for the pur- 
pose of having it added to the corporation stock, but for the pur- 
pose of enabling the assessing officer to know the amount of such 
indebtedness in order that he might deduct the same from the value 
of the share of stock as shown by the property aside from the 
indebtedness. 

Assuming that the corporation which you mention in your ques- 
tion should, after the expiration of one year, earn enough money 
in the operation of its business, or by reason of increase in value 
of some of its property, so that they would be enabled to entirely 
liquidate the bonded indebtedness, then the corporation would have 
on hands its original $250,000.00, also the $250,000.00 of property 
purchased with the bonded indebtedness, which would make a total 
of $500,000.00, from which you would deduct the real estate assess- 
ment of $150,000.00, which would leave $350,000.00 for assess- 
ment aside from the real estate. This is identical with what you 
have in your supposed case before there has been any earnings, 
and yet it would be absurd to say, that, after the company has 
earned $250,000.00 and paid off that amount of its indebtedness 
and still had on hands the same property which it had at the time 
it incurred the $250,000.00 indebtedness, it is not worth more than 
it was at the time the indebtedness was first incurred. And this 
it seems to me demonstrates the fallacy of your position. 

On the other hand, if the plan contended for by the auditor and 
treasurer, as stated by you, was followed, the value of the stock 
would be increased by the $250,000.00 earned and applied to the 
payment of indebtedness. 


Yours truly, 


C. A. RoBBINS, 
Assistant Attorney General. 


46 ATTORNEY GENERAL’S OPINIONS 


H'arM NAMES—REGISTRATION OF.—An instrument by which a farm 
is given a name is one affecting real estate and should be 
acknowledged before being recorded. 

March 27, 1911. 

Matt Parrott & Sons, 

Waterloo, Iowa. 


GENTLEMEN: Jam in receipt of your communication of the 25th 
instant directing attention to the recent act which passed the 
General Assembly providing for the recording of farms, a descrip- 
tion thereof and the name of the farm described. You request to 
be advised as to whether the instrument should be acknowledged. 

The bill itself is silent on this question but section 2925 of the 
code provides that no instrument affecting real estate is of any 
validity against subsequent purchasers for valuable consideration 
without notice, unless recorded in the office of the recorder of the 
county in which the same lies as hereinafter provided; and section 
2926 of the code provides: - 


‘*Tt shall not be deemed lawfully recorded unless it has been 
previously acknowledged or proved in the manner hereinafter 
prescribed. ”’ 


In my opinion the instrument should be acknowledged in view 
of these provisions of the law. The act however contained no pub- 
lication clause and therefore the same will not become effective until 
the 4th day of July, 1911. 

Yours very truly, 
GEORGE Cosson, 
Attorney General. 


Pott Booxs.—The judges of election should deliver one of the 
duplicate poll books to the township clerk and the other to 
the county auditor in both general and town elections. 


March 30, 1911. 
F. B. Winey, City Clerk, 
Marshalltown, Iowa. 


Dear Sir: Your letter of the 29th inst. addressed to the attor- 
ney general has been referred to me for reply. 7 
While this department is not authorized to give an official opinion 
to persons other than state officers, yet, in view of the situation as 


ATTORNEY GENERAL’S OPINIONS 47 


stated by you, I am glad to give you the benefit of my personal 
views with reference to the matter which is stated by you as 
follows: 


‘“‘T am handing you a copy of a written opinion of our city 
attorney, regarding my turning over the poll books to the 
county auditor. I am at a loss to know just what to do, on 
account of having advice from two sets of attorneys, and they 
disagree.”’ 


I also note the opinion of your city attorney, expressed by him 
as follows: 


‘*T would call your attention to section 9, chapter 3 of the 
revised ordinance which it seems to me is conclusive of this 
controversy. It reads as follows: Sec. 9. When the polls are 
closed the ballots shall be strung as counted, replaced in the 
ballot box and with all poll books, tally sheets, ete., delivered 
immediately to the city clerk who shall preserve them for six 
months, or until the determination of any contract then 
pending. 

‘“The section which was called in question (1145) pertains, 
I believe, to the general election law and the code (642) pro- 
vides that city elections should be governed by the general 
election law so far as such law is applicable. 


‘*T can see no reason or necessity for any of the poll books 
being deposited with the county auditor. They did not 
originate in his office, and under any circumstances if there 
has been any neglect of duty it was in the judges of election 
failing to deliver the poll books to the county auditor, but 
where the ordinance is specific as in the case for them to be 
returned to you and kept and preserved by you I think that 
should determine your conduct.”’ 


The first section referred to by the city attorney, code section 
1145, provides as follows: 


‘‘One of the poll books containing such return, with the 
register of election attached thereto, shall be delivered by one 
of the judges of election, within two days, to the county audt- 
tor. In township precincts, the other of said poll books, with 

_ the register of election attached, shall be delivered by one of 
the judges of election to the township clerk. In city precincts, 
the other of said poll books with register of election attached, 


48 ATTORNEY GENERAL’S OPINIONS 


shall be delivered by one of the judges of election to the city 
clerk. In town elections, the other of said poll books, with 
register of election attached, shall be delivered by one of the 
judges of election to the town clerk.’’ 


It will be observed that this section specifically applies to town 
elections and hence it does not ‘‘pertain to general elections’’ alone 
as claimed by the city attorney. 

This section contemplates that one book shall be delivered to the 
auditor; this is clearly indicated by the language requiring ‘‘the 
other of said poll books’’ to be delivered ‘‘to the town elerk.’’ ‘No 
express provision is found elsewhere in the code requiring a like 
delivery to the auditor and city clerk in ease of city elections and 
yet it will doubtless be conceded that there is no reason for re- 
quiring the poll book to be filed with the auditor in case of town 
elections that does not apply with equal force to city elections. 

The question immediately arises, whether the words ‘‘town elec- 
tions’’ and ‘‘town clerk,’’ as used in section 1145, were used in 
the sense of referring to incorporated towns exclusive of cities, or 
as including cities as well as incorporated towns. The term town 
is a generic term, including every character of municipal govern- 
ment from a city to a village. 


‘Words and Phrases, pages 7019-20. 


This view is strengthened when we also take into account our 
own statute with reference to the construction of words and 
phrases, code section 48, subdivision 16, which reads as follows: 
‘‘Town. The word ‘town’ means an incorporated town, and may 
include cities.’’ And when we note the further language of sec- 
tion 1145, ‘‘with register of election atached’’ which must refer 
to the copy of registration list required by code section 1080 to 
be delivered to the judges of election before the opening of the 
polls, and to be by them returned with the vote from their precinct, 
and when we further consider that no registration is authorized 
or required in incorporated towns, but only ‘‘in cities having a 
population of thirty-five hundred or more,’’ Code section 1076, 
there is no escape from the conclusion that the word ‘‘town’’ in 
each instance where used in section 1145, was used in the sense 
of city or incorporated town. 

It therefore follows that only one of the poll books should have 
been delivered to you and the other should have been delivered by 
the judge of election to the county auditor. } 


ATTORNEY GENERAL’S OPINIONS 49 


The city ordinance referred to by the city attorney, if construed 
to reauire the return of all poll books to you and to prevent the 
return of the one to the auditor as required by statute; would be 
in conflict with the state law and void, and would hence afford you 
no protection. 


Iowa City vs. McInnery, 114 Iowa, 586; 
Code section 680. — 


You should either deliver one of the poll books to the auditor 
for the judge of election or deliver it to the judge of election that 


he may do so. 
Respectfully submitted, 


C. A. Rospsins, 
Assistant Attorney General. 


Deputy AUDITOR—APPOINTMENT OF—APPROVED BY BOARD OF Su- 
PERVISORS.—It is not necessary that a county auditor have 
the approval of the board of the appointment of a particular 
person as his deputy, but he should have the consent of the 
board that one or more deputies be appointed. 


Mr. C. A. Bryson, April 6, 1911. 
Towa Falls, Iowa. 


Dear Sir: Your letter of March 31st addressed to the attorney 
general has been referred to me for reply. The questions on which 
you desire the opinion of this department, as stated by you, are 
as follows: 

‘‘Ist. Has the board of supervisors: the right, as defined by 
the code, to refuse to confirm the appointment of a deputy 
auditor, made by the auditor? 

‘‘Od. If for any cause no deputy auditor is appointed, is > 
it within the province of the auditor, though he may have 
made one appointment, to refuse to make any further appoint- 
ment? 

‘“3d. In ease no deputy has been appointed has the auditor 
the right, under the statute, to employ continuously, or only 
temporarily, a clerk to perform the duties of deputy auditor? 

‘‘Ath. If only temporarily, what period of time does that 
embrace ?’’ 


4 


50 ATTORNEY GENERAL’S OPINIONS 


In answer to your first inquiry, will say that code section 481 
provides: 


‘*EHach county auditor may, in writing, with the consent of 
the board of supervisors, appoint one or more deputies not 
holding a county office, for whose acts he shall be responsible 
and from whom he shall require a bond, which bond shall be 
approved by the officer who has the approval of the principal’s 
bond, and such appointment may be revoked in writing, which 
appointment and revocation shall be filed and kept in the 
auditor’s office.’’ 


I do not think that a proper construction of this section requires 
the board to confirm the appointment of a deputy, made by the 
auditor, but rather, in the first instanee, requires the consent of 
the board that one or more deputies may be appointed, and if the 
board has given its consent that one or more deputies may be ap- 
pointed then the appointment may be made by the auditor with- 
out requiring the consent of the board to the selection of the par- 
ticular individual chosen by the auditor as his deputy. 

The answer to your second inquiry is to some extent covered by 
the answer to the first. If the board has given its consent that a 
deputy may be appointed, the appointment may be made by the 
auditor at any time, even though he has attempted to make a pre- 
vious appointment. | 

Bearing upon your third inquiry, the same section of the statute 
provides: 


‘In case no deputy shall be appointed, but on account of 
the pressure of business in his office the auditor is compelled 
temporarily to employ an assistant, he shall file the bill for 
such service at their next regular meeting, and the board of 
supervisors shall make a reasonable allowance therefor.’’ 


While the statute contemplates that the appointment in such a 
case should be temporary and hence could not be said to be con- 
tinuous, yet I am inclined to think that the length of time during 
which such appointment might extend would depend upon the 
length of time that the ‘‘pressure of business in his office compelled 
the employment of such assistant,’’ and if in any given case the 
pressure of business in the office compelled continuous employment, 
the board would be compelled to make a reasonable allowance 
therefor under the statute. 

Your fourth inquiry is fully answered by what has been said in 
reply to the third. 

Yours very truly, 
C. A. RoBBINs, 


Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 51 


BANKS—TAXATION oOF.—General provisions concerning the taxa- 
tion of banks discussed. 
April 11, 1911. 
Mr. J. W. Gray, 
Sioux City, Iowa. 


DeEAR Sir: In accordance with my promise, I am writing you 
further with reference to the matters inquired about in your letter 
of March 31st, addressed to the attorney general. Your inquiries 
as Stated by you are as follows: 


“Ist. Is capital, surplus and undivided earnings to be con- 
sidered the full value of stock of which 20% is to be taken as 
taxable value? 

*‘2d. From said full value is all real estate owned by the 
bank to be deducted or only that part on or in which the bank 
as located? Of course I understand leasehold interests are 
considered as ownership, also the amount of capital invested 
in shares of stock of corporations owning only real estate. 
The point I wish instructions on is, is this intended to cover 
on all real estate or only that passed on or in which bank is 
located ? 

‘3d. Are any deductions to be made for government or 
Panama bonds? I was told by several, who took considerable 
interest in this bill, that government bonds are not to be de- 
ducted in any ease. 

‘‘4th. In making up assessments, would it not be proper 
to assess under the head of the bank, all the stockholders, list- 
ing to each the number of shares owned and the value thereof, 
however treating and listing same as corporation stocks?’’ 


Your first interrogatory should be answered in the affirmative 
but it should be borne in mind in fixing the value of any share of 
stock, in any given corporation that the par value of such share 
is not necessarily its real or true value. <A share of stock in some 
corporations is worth 50 cents on the dollar and some 20 cents on 
the dollar. 

In answer to your second question, will say that section 4 of the 
new law, provides, in arriving at the total value of the shares of 
stock of such corporations, the amount of their capital actually 
invested in real estate owned by them and any shares of stock of 
corporations owning only the real estate, on or in which the trust 
company is located, shall be deducted from the real value of such 


52 ATTORNEY GENERAL’S OPINIONS 


shares, and such real estate shall be assessed as other real estate, 
so that the rule should be to deduct not necessarily the real value 
of the real estate or its taxable value from the shares of stock, but 
rather as stated in the section quoted, THE AMOUNT OF THEIR 
CAPITAL ACTUALLY INVESTED IN REAL ESTATH, ETC. 


In answer to your third inquiry, will say that there are no de- 
ductions to be made from the value of any share of corporate stock, 
as otherwise ascertained on account of the fact that the capital of 
such corporation, or any part thereof, may be invested in govern- 
ment securities of any kind. It is only where the corporation. 
itself is sought to be taxed, rather than the shareholder, that these 
deductions are required to be made. The supreme court of the 
United States in the case of the Home Savings Bank vs. Des Motnes, 
205 U. S., at p. 516, in passing upon this question used the follow- 
ing language: 


‘* Although the states may not in any form levy a tax upon 
United States securities, they may tax, as the property of 
their owners, the shares of banks and other corporations whose 
assets consist in whole or in part of such securities, and in 
valuing the shares for the purpose of taxation it is not neces- 
sary to deduct the value of the national securities held by the 
corporation whose shares are taxed. The right to tax the 
shares of national banks arises by congressional authority, but 
the right to tax shares of state banks exists independently of 
any such authority, for the state requires no leave to tax the 
holdings in its own corporations. The right of such taxation 
rests upon the theory that shares in corporations are property 
entirely distinct and ee from the property of the 
corporation.’’ 


Replying to your 4th inquiry, I can see no objection to having all 
bank shares and other corporation stock, held in any particular 
bank or trust company, listed in a place by itself for the purpose 
of convenience and for the purpose of enabling the books to be 
balanced as suggested by you, but care should be exercised, and 
the assessment made in such a way as to show beyond question that 
it is made against the individual stockholder and not against the 
bank, for if it could be construed as an assessment against the bank 
the tax would be illegal and unauthorized, unless the government 
securities were deducted as hereinbefore explained. 


ATTORNEY GENERAL’S OPINIONS 53 


I would further suggest in reply to that phase of your letter 
which inquires, whether real estate deducted should be at its 
assessed value or at the value at which it is held and carried by the 
bank, that in any given case in which you are unable to determine 
the exact amount of capital invested in the real estate, that then 
the deduction should be made on the basis of the assessed value, 
as required by code section 1324. The law as finally amended was 
published in the Des Moines Capital of date April 8th, and also in 
the Register and Leader about the same time and you can doubtless 
secure a copy, in order to have the exact language before you. 


Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


BANKS—PRIVATE—TAXATION—-MONEYED CAPITAL—DEDUCTION OF 
INDEBTEDNESS.—Money employed in private banks is moneyed 
capital within the meaning of chapter 63, acts of the thirty- 
fourth general assembly, and indebtedness is not to be deducted 


therefrom. 
May 26, 1911. 
B. E. Norton, County Audttor, 


Algona, Iowa. 


DeE4r Sir: This will acknowledge receipt of your letter of the 
19th inst. addressed to the attorney general in which you ask to 
be advised as to whether the assessment for taxation of private or 
partnership banks is affected by the act of the thirty-fourth general 
assembly, known as senate file No. 387. 

As a courtesy to you, I may say in a personal and unofficial way 
that the act in question undoubtedly does apply to the assessment 
of so-called private banks this year. The only specific reference 
to private banks in the act is that section which amends section 
1321 of the supplement to the code, 1907, the effect of which is to 
strike from that section the provision permitting the deduction of 
certain debts and exemptions from the property and assets on 
which said banks were assessed under the section. But private 
banks as defined in that section undoubtedly is moneyed capital 
within the meaning of the new act, so that unless private banks 
as defined by the statute are assessed upon the same basis as the 
corporations mentioned in the new act, and upon the same basis 
as moneyed capital within the meaning of that act, a discrimina- 


54 ATTORNEY GENERAL’S OPINIONS 


tion would result in the assessment this year against state, savings 
and national banks, and loan and trust companies, and moneyed 
capital other than private banks. There is a provision in the new 
act which expressly prohibits the deducting of debts from the value 
of moneyed capital and from the value of the property of the cor- 
porations mentioned in the new act, for the purpose of taxation, 
and if private banks are assessed under the old statute without 
reference to the new act, they would have the privilege of deduct- 
ing their debts which results in the discrimination referred to. 
Very truly yours, 
N. J. Lee, 
Special Counsel. 


TAXATION—BANK SHARES—UNDIVIDED EARNINGS.—The undivided 
earnings should be taken into account in fixing the value of 
bank stock for purpose of taxation. 


7 May 26, 1911. 
R. R. Craic, Cashier, 


Corydon, Iowa. 


DEAR Sir: This will acknowledge receipt of your letter of the 
24th inst. addressed to the attorney general, in which you state 
that your bank on the Ist day of January last had undivided earn- 
ings amounting to over $15,000.00 and that on the 4th day of 
January, you paid out as dividends therefrom the sum of $12,600.00 
and charged off a further sum of $529.00 and you ask to be in- 
formed as to whether said undivided earnings should be taken into 
account in determining the value of the shares of stock of said 
bank for the purpose of taxation under the act of the thirty-fourth 
general assembly, known as senate file 387, providing for the taxa- 
tion of state banks and other banks and corporations. 


In a personal and unofficial way I may state, as a courtesy to 
you, that said undivided earnings undoubtedly should be taken 
into account in determining the value of the shares of stock of said 
bank, for the purpose of taxation this year. The value of all prop- 
erty for the purpose of taxation is determined and fixed as of 
January Ist of the year in which it is assessed. There is nothing 
in the new act which in any way changes this rule with respect 
to the property to be assessed thereunder. The statement and data 
required by this act and other sections of the statute to be fur- 


ATTORNEY GENERAL’S OPINIONS 55 


nished to the assessor by banks to enable him to perform his duty 
should include, among other things, the undivided earnings as of 
January Ist. 
Very truly yours, 
N. J. Les, 
Special Counsel. 


SEWER ASSESSMENTS—CHURCH PROoPERTY—HEXEMPTIONS.—Church 
property is not exempt from special assessments, such as sewer 


assessments and the like. 
Rey. A. L. Curtis, May 27, 1911. 


Missouri Valley, Iowa. 


DeAR Sir: Your favor of May 19th, addressed to Attorney 
General Cosson, has been handed to me with a request to answer 
same. 

Replying to your inquiry as to whether or not church property 
is exempt from a sewer assessment, will say that the general exemp- 
tions from taxation do not apply to special assessments, and for 
that reason the city can legally assess church property to meet the 
expense of constructing a sewer. - 

Title VII, chapter 1 of the code provides for the assessment of 
taxes for the general support of the government. That chapter 
provides for the exemption from such general taxes of all church 
property. (Code section 1304, div. 2.) 

Title V, chapter 7 provides for the building of sewers and assess- 
ing the property abutting said sewer, in order to meet the expense 
of constructing said improvement, but this chapter makes no ex- 
emptions as to church property. 

You can readily understand that taxation for the maintenance 
of the government is entirely different from that of an assessment 
for the construction of a public improvement. The statute ex- 
pressly exempts church property from the former; it makes no such 
exemption from the latter. Furthermore, in the matter of exemp- 
tions, it is construed strictly in favor of the authority making the 
assessment. 

If you have access to the following authorities you may be inter- 
ested in reading them: 


Griswold College vs. Iowa, 46 Ja., 275; 
Cassady vs. Hammer, 62 Ia., 359; 
Sioux City vs. Ind. Dist. Sioux City, 55 Ta., 150. 


56 ATTORNEY GENERAL’S OPINIONS 


It is my personal opinion that the special assessment of which 
you complain can be legally made if the city authorities so desire. 
You will, of course, understand that this is not an official opinion, 
but simply my personal views upon the matter, given out of cour- 
tesy to you. 

Very truly yours, 
HENRY E. SAMPSON, — 
Special Counsel. 


MonEYED CAPITAL—DEDUCTION OF CAPITAL INVESTED IN GOVERN- 
MENT Bonps.—Moneyed capital is capital invested in loans or 
securities for the payment of money where the object of the 
business is the making of profit by its use as money. Since 
the enactment of chapter 638, acts of the thirty-fourth general 
assembly, a state bank is not allowed to deduct from the value 
of its shares the amount of its capital invested in government 
bonds. 

May 29, 1911. 

Hon. SHERWOOD A. CLOCK, 


Hampton, Iowa. 


Dear Sir: Referring again to your valued letter of the 5th inst. 
addressed to the attorney general, in which you requested the attor- 
ney general to render an opinion as to certain questions arising in 
the application of the act of the thirty-fourth general assembly 
providing for the taxation of banks, moneyed capital, ete., I have 
to say that because of the large amount of official business demand- 
ing the attention of the entire department, it has been impossible 
to render an opinion construing all of the features of the act re- 
ferred to, which it was the purpose to do. 


The two questions you submit are: =. 
‘1, What is meant by ‘moneyed capital’ as used in said 
act? 
‘‘2. Is a state bank allowed to deduct the amount of its 
capital invested in government bonds?”’’ 


4 


It is not practicable to so define the terms ‘‘moneyed ecapital’’ 
as to indicate therein just what it applies to. The definitions of 
‘‘moneyed capital’’ as contemplated by section 5219 of the revised 
statutes of the United States, as set forth in various decisions of 
the courts are more or less general. You will notice that the legis- 


ATTORNEY GENERAL’S OPINIONS 57 


‘ 


lature in the act in question used the term ‘‘moneyed capital’’ as 
within the meaning of said section of the United States statutes, 
and there is no attempt in the act itself to point out just what is 
included therein, and we are, therefore, left to ascertain what the 
courts have held ‘‘moneyed capital’’ to be within the meaning of 
said section 5219. 

I select a statement of the United States supreme court in the 
ease of Mercantile National Bank vs. New York, reported in 121 
U. 8., 1388, which is as complete and satisfactory a definition as 
ean be found: 


‘‘The terms of the act of congress, therefore, include shares 
of stock or other interests owned by individuals in all enter- 
prises in which the capital employed in carrying on its busi- 
ness is money, where the object of the business is the making 
of profit by its use as money. The moneyed capital thus em- 
ployed is invested for that purpose in securities by way of 
loan, discount, or otherwise, which are from time to time, ac- 
cording to the rules of the business, reduced again to money 
and reinvested. It includes money in the hands of individuals 
employed in a similar way, invested in loans, or in securities 
for the payment of money, either as an investment of a per- 
manent character or temporarily with a view to sale or repay- 
ment and reinvestment. * * * * This definition of mon- 
eyed capital in the hands of individuals seems to us to be the 
idea of the law, and ample enough to embrace and secure its 
whole purpose and policy.’’ 


Answering your second inquiry, I do not think that a state bank 
is entitled to deduct any part of its capital that may be invested 
in government bonds. The bank as a corporation is not assessed 
or taxed. The shares of stock of the bank are assessed to the in- 
dividual stockholders and I do not think it was the intention of the 
legislature to permit such deductions. 

Of course, you will not regard the statements contained in this 
letter as in any sense the expression of an official opinion from this 
department, but are largely the personal views of the writer, made 
without opportunity to make a proper and full study and investi- 


gation of the subject. 
Very truly yours, 


N. J. Les, 
Special Counsel. 


58 ATTORNEY GENERAL’S OPINIONS 


MOoNEYED CapitaL DEFINED—VALUE OF MONEYS AND CREDITsS—How 
DETERMINED—Townsuip AssEssors’ ComMPENSATION.—Money- 
ed capital embraces capital employed in banking and in other 
lines of business where profit is sought to be made by the use 
of moneyed capital as money. The value to be placed upon 
moneys and credits for the purpose of taxation is its actual 
market value. Additional compensation should be allowed as- 
sessors for correcting the assessment to conform to the provi- 
sions of chapter 63, acts of the thirty-fourth general assembly. 


May 29, 1911. 
Hon. P. J. NEtson, County Attorney, 


Dubuque, Iowa. 


Dear Str: Referring again to your letter of the 14th ult. in 
relation to the act of the last legislature providing for the taxation 
of banks, trust companies, moneyed capital and moneys and credits, 
I have to say that this department has been so occupied with 1m- 
portant official business that no time was found to prepare an 
opinion construing the provisions of the act in question. 

The questions you submit are: 


“1. What is meant by ‘moneyed capital’? 


‘2. How is the value of moneys and credits to be deter- 
mined ? 


“3. Are township assessors entitled to additional compen- 
sation for their services in connection with the new act?”’ 


‘ 


It is not practicable to so define the term ‘‘moneyed capital’’ 
as to indicate therein just what it applies to. The definitions of 
‘‘moneyed capital’’ as contemplated by section 5219 of the revised 
statutes of the United States, as set forth in various decisions of 
the courts are more or less general. You will notice that the legis- 
lature in the act in question used the term ‘‘moneyed capital’’ as 
within the meaning of said section of the United States statutes, 
and there is no attempt in the act itself to point out just what is 
included therein, and we are, therefore, left to ascertain what the 
courts have held ‘‘moneyed ecapital’’ to be within the meaning of 
said section 5219. : 

In the case of Mercantile Bank vs. New York, 121 U. S., the 
supreme court said that: 

‘‘The term ‘moneyed capital’ as used in section 5219 em- 
braces capital employed in national banks and capital employed 


ATTORNEY GENERAL’S OPINIONS 59 


by individuals when the object of their business is the making 
of profit by the use of their moneyed capital as money; but 
it does not include moneyed capital in the hands of corpora- 
tions, even if its business be such as to make its shares moneyed 
capital when in the hands of individuals.’’ 


In the same case the court, after having reviewed the previous 
decisions, states: 


‘Tt follows as a deduction from these decisions that ‘mon- 
eyed capital’ in the hands of individual citizens does not 
necessarily include shares of stock held by them in all corpora- 
tions whose capital is employed, according to their respective 
corporate powers and privileges, in business carried on for the 
pecuniary profit of shareholders, although shares in some cor- 
porations, according to the nature of their business, may be 
such moneyed capital. The rule and test of this difference is 
not to be found in that quality attached to shares of stock in 
corporate bodies generally whereby the certificates of owner- 
ship have a certain appearance of negotiability, so as easily 
to be transferred by delivery * * * * It does not follow, 
because these are invested in such a way as properly to con- 
stitute moneyed capital, that the shares of stock in the cor- 
porations themselves must necessarily be within the same de- 
scription. * * * * The true test of the distinction, there- 
fore, can only be found in the nature of the business in which 
the corporation is engaged.’’ 


The court also used this language, which probably is as good a 
definition as can be found: 


‘The terms of the act of congress, therefore, include shares 
of stock or other interests owned by individuals in all enter- 
. prises in which the capital employed in carrying on its business 
is money, where the object of the business is the making of 
profit by its use as money. The moneyed capital thus employed 
is invested for that purpose in securities by way of loan, dis- 
count, or otherwise, which are from time to time, according 
to the rules of the business, reduced again to money and 
reinvested. It includes money in the hands of individuals em- 
ployed in a similar way, invested in loans, or in securities 
for the payment of money, either as an investment of a per- 
manent character or temporarily with a view to sale or repay- 
ment and reinvestment. sy This definition of mon- 


60 ATTORNEY GENERAL’S OPINIONS 


eyed capital in the hands of individuals seems to us to be the 
idea of the law, and ample enough to embrace and secure its 
whole purpose and policy.’’ 

The valuation of moneys and credits for the purpose of taxation 
as contemplated by the new act, undoubtedly has reference to the 
market value, what the value actually is. 

As to your third question, I hardly know what to say. The 
board of supervisors in fixing the compensation of assessors this 
year, did so in view of the work to be done under the old law and 
virtually fixed the amount of time that was to be devoted to the 
work. The duties to be performed under the new act are not made 
necessary because of any neglect or omission of duty on the part 
of the assessors, but is due to a fault in the previous law, and it 
seems to me that where any material additional time is required 
to bring the assessment of the matters covered by the new act in 
harmony therewith, it would be only fair and equitable that addi- 
tional compensation be made to the assessors. In any event, if the 
board of supervisors are disposed to allow additional compensation 
proportionate to the extra amount of time put in, I think it would 
be all right. 7 

Of course, you will not regard the statements herein in the light 
of an official opinion. They are largely the personal views of the 
writer, and made without opportunity of full investigation of the 
subject. 

Yours truly, 
N. J. Lag, 
Special Counsel. 


Boarp oF REeviEw—MEETINGS oF.—The meeting of the board of 
review need not be published. The only persons interested 
are those notified to appear. 

7 May 31, 1911. 

JOHN F. Dermopy, Town Clerk, 

Saint Ansgar, Iowa. 


DEAR Sir: Your letter of the 8th inst. addressed to the attorney 
general has been referred to me for reply. 

Your first question, briefly stated, is whether or not the final 
meeting of the board of review must be an open and public meeting 
or whether their final action may be taken in private. 


ATTORNEY GENERAL’S OPINIONS 61 


In my judgment, there is no necessity for this meeting being a 
public one. The only persons interested are the ones to whom 
notice has been given by the board of its intention to increase their 
assessment. They should, of course, have ample opportunity to 
appear with their counsel and such witnesses as they desire to use 
before the board, and there is no reason why the public generally 
might not be excluded from the meeting. 

Your second question is whether or not the final meeting of the 
board may be transferred from the usual place to a room across 
the street, and persons interested required to appear at the latter 
place of meeting. | 

Code section 1370 provides: ‘‘The board shall meet on the first 
Monday of April at the office of the township, city or town clerk 
or recorder, and sit from day to day until its duties are completed.’’ 


Code section 1372 provides: 


‘At the conclusion of the action of the board, the clerk shall 
post an aphabetical list of those whose assessments are thus 
raised. 


‘‘The board shall hold an adjourned meeting with at least 
five days intervening after the posting of notices before final 
action, and the posted notices shall state the time and place of 
holding such adjourned meeting, which time and place shall 
also be stated in the proceedings of the board.’’ 


It will thus be seen that the law fixes the place at which these 
meetings should be held, viz., at the office of the township, city or 
town clerk or recorder. 

In the case of Funk vs. Carroll County, 64 N. W., 768, it was 
held by our supreme court that where the law fixed the time and 
place of holding a district court and the judge adjourned the court 
to a private house for the purpose of a trial that the court thereby 
lost jurisdiction and that the proceedings at the house were of no 
effect, and I see no season why the same rule should not apply to 
proceedings of the board of equalization. 

With reference to the assessment of moneys and credits the new 
law, section 1 of senate file 387 requires all parties to furnish the 
assessor, upon demand, a full, complete, itemized sworn statement, 
showing the amount of same. 

Yours truly, 


C. A. Ropsins, 
Assistant Attorney General. 


62 ATTORNEY GENERAL’S OPINIONS 


Roap Drag Funp.—The one mill road drag fund provided for in 
the new law is in addition to the six mill tax authorized to be 
levied by the statutes under code supplement section 1528. 


Mr. V. A. Buruey, County Auditor, June 26, 1911. 
Sibley, Iowa. 


Dear Sir: Replying to your letter of the 23rd inst. to the at- 
torney general in which you request to be advised as to whether 
the one mill to be levied for dragging fund under the new road 
drag law is included in the six mills that the trustees are author- 
ized to levy before the enactment of such law, will say that such 
one mill for dragging fund is not so included but is in addition to 
the maximum that could be levied by the trustees under section 
1528 of the supplement to the code, 1907. 

Yours very truly, 
N. J. Lug, 
Special Counsel. 


Souprers’ Exemprions.—The widow of a Union Soldier who re- 
marries one not a soldier and again becomes a widow is not 
entitled to the exemption provided for soldiers’ widows by 
code supplement section’ 1304. 

Hon. R. L. McCorp, July tao 

Sac City, Iowa. 


DeEaR Siz: Your letter of the 23rd of May to the attorney 
general requesting his opinion as to whether the widow of a Union 
soldier who afterwards remarried and again became a widow, is 
entitled to claim the exemption under section 1304 of the supple- 
ment to the code, 1907, has not been noticed before now because of 
the unusual amount of official business to be cared for. 

I have not gone into this matter very thoroughly but am inclined 
to agree with the conclusion that you have reached, viz., that a 
strict construction of the provision of the statute would not entitle 
such widow to such exemption, having in mind that taxation is the 
general rule and that exemptions are the exception and, literally, 
she did not remain unmarried after the death of her first husband. 
The assessor might allow exemptions to such persons on other 
grounds subject to the approval of the board of supervisors under 
another subdivision of the same section. 

Respectfully yours, 
N. J. Las, 
Special Counsel. 


ATTORNEY GENERAL’S OPINIONS 63 


SHERIFF—FEES OF WHEN PERFORMING DUTIES IN JUSTICE COURTS. 
—The fees of a sheriff when performing the duties of a con- 
stable in justice court are those allowed constables. 

| July 7, 1911. 

Mr. JoHN H. CROWELL, 

Rockford, Iowa. 


Dear Sir: Yours of the 6th inst. addressed to the attorney gen- 
eral has been referred to me for reply. 

Your question, briefly stated. is, ‘‘what fee is a sheriff or deputy 
sheriff entitled to for serving a warrant issued by a justice of the 
peace ?”’ 

The answer to your inquiry will be found in subdivision 23 of 
code supplement, section 511, which provides: 

‘When sheriffs perform official duties in justice courts, their 
fees shall be the same as allowed constables,’’? and in subdivision 
13 of code section 4598, which provides the fee for constables as 
follows: ‘‘For serving each warrant of any kind, seventy-five 
cents.’’ 

Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


County ATTORNEY—Dvuty oF—ScHoot Funp Loans.—It is not 
the duty of the county attorney to examine abstracts of title 
submitted to the county auditor in connection with a loan on 

" the school fund but the county auditor may consult the county 
attorney in connection therewith. 
July 12, 1911. 

Mr. E. J. RIEGEL, 


Rock Rapids, Iowa. 


Dear Sir: You inquire, first whether you as a county auditor 
have a right to request the county attorney to examine an abstract 
of title submitted to you in connection with making a loan from 
the permanent school fund. 

Second, whether you as county auditor have the authority to 
submit such abstract of title to a private attorney for his opinion 
thereon, if it is not the duty of the county attorney to examine 
same, and to charge the fees of such private attorney for said 
service to the borrower. 


64 ATTORNEY GENERAL’S OPINIONS 


Third, if the county attorney does examine such abstract when 
requested by the county auditor, is he entitled to charge a fee 
for that service and, if so, is such fee properly chargeable to the 
borrower ? 

Section 2850 of the supplement to the code, 1907, makes it the 
duty of the county auditor to examine any abstract of title which 
the proposed borrower from the school fund may submit and he 
is required to perform certain other services in connection with 
the making of loans from the permanent school fund, and for such 
services he is allowed $2.00 in addition to his regular compensation, 
which is paid by the borrower. While the county attorney is the 
official adviser of the board of supervisors and other county offi- 
cers, including the county auditor, yet he may not be required to 
do everything which such officers may request him to do. Sub- 
division 7 of section 2, chapter 17, acts of the thirty-third general 
assembly, requires the county attorney to give advice or his opinion 
in writing, without compensation, to the board of supervisors and 
other county officers, when requested so to do by such board or 
officers, upon all matters in which the state or county is interested 
or relating to the duty of the board or officer in which the state 
or county may have an interest. If it should be held that it is the 
duty of the county attorney to examine all such abstracts, then 
that officer would be performing a duty which has been expressly 
cast upon the county auditor. If it was the intention of the legis- 
lature that the county auditor need only pass the abstract of title 
over to the county attorney for such examination as is usually 
made of such instruments, it probably would have employed more 
suitable language to have expressed that intention. It is my opinion 
that the language in section 2850 of the supplement to the eode,. 
1907, referred to, means just. what it says, viz., that the county 
auditor shall examine the abstract of title there referred to. But 
I do not want to imply from what I have said that the county 
auditor may not, under any circumstances, request the advice or 
opinion of the county attorney with respect to questions that may 
arise in connection with the examination of such abstracts of title, 
for I think that if any doubt should arise in the mind of the county | 
auditor as to the sufficiency of the title disclosed by the abstract 
that he might very properly submit such questions to the county 
attorney for his opinion, and in such eases as the county auditor 
is authorized to request the opinion of the county attorney in such 
matters the county attorney would not be permitted to make any 
charge for his opinion or service. 


ATTORNEY GENERAL’S OPINIONS 65 


I do not think the county auditor, under any circumstances, 
would be authorized to submit such abstracts of title to a private 
attorney for examination at the expense of the borrower or at the 
expense of the county. 


Respectfully yours, 
N. J. LE, 


Special Counsel. 


SHERIFF—COMPENSATION FOR OBTAINING EVIDENCE.—There is no 
authority for the county supervisors to reimburse the sheriff 
for sums paid out by him in obtaining evidence from a prisoner 
confined in jail. 

July 18, 1911. 

Hon. Wo. DENNIS, 


Marion, Iowa. 


Dear Sir: I am directed to reply to your letter written some 
time ago to the attorney general requesting to be advised as to 
the legal right of Linn county to reimburse and compensate the 
sheriff of Linn county for certain moneys advanced and paid by 
him in obtaining evidence from a prisoner confined in jail. 

With reference to the question you submit, I may say that it is 
not one upon which the attorney general is authorized to officially 
advise you or the sheriff. The county attorney is the official ad- 
viser of county officers. I suppose, however, you had some purpose 
in not submitting the question to that official and in making the 
request of this department. 

While, as stated, I cannot officially advise you, I am permitted 
to say in a personal way, as a courtesy to you, that it is extremely 
doubtful if your county has the authority under the facts stated 
by you, to recognize and pay the sheriff the amounts he so ex- 
pended. In faet, I do not think it can be done, although there 
would seem to be very much merit in the claim and that it was 
expended with the best of motives and good results were obtained 
thereby and the county and state were the beneficiaries of such 
expenditure. : 

Respectfully yours, 
N. J. Les, 
Special Counsel. 


66 ATTORNEY GENERAL’S OPINIONS 


EXEMPTIONS OF PROPERTY FROM TAXATION.—Lands held by an agri- 
cultural association in order to be exempt from taxation under 
code supplement section 1304 should not be leased for a valu- 
able consideration. 

July 18, 1911. 

Mr. JosepH C. CAMPBELL, 

Charles City, Iowa. 


Dear Sir: Your letter of April 29th to the attorney general 
has been referred to me for reply. 7 


Your question briefly stated is, whether or not the lands (26 
acres in extent) owned by the Floyd County Agricultural & Me- 
chanical Association are exempt from taxation under section 1304 
of the code when it is leased for $300.00 per year. 


Subdivision 2 of the section provides: 


‘“All grounds and buildings used for public libraries, in- 
eluding libraries owned and kept by private individuals, asso- 

_ Ciations or corporations for public use, and not for private 
profit, and for literary, scientific, charitable, benevolent, agri- 
cultural and religious institutions, and societies devoted solely 
to the appropriate objects of those institutions, not exceeding 
160 acres in extent, and not leased or otherwise used with a 
view to pecumary profit * * * * are not to be taxed.” 


It necessarily follows from the fact that the property in question 
is leased for $300.00 per year and has been so leased for a number 
of years, that it is both leased and held with a view to pecuniary 
profit within the meaning of this section and, hence, is not entitled 
to the exemption. 

You will understand that this is not a matter upon which this 
department is authorized to render an official opinion and that the 
foregoing is the personal view of the writer. 


Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 67 


PEDDLER’s LicENSE—ANNUAL.—Section 1347-a, code supplement, 
providing for the licensing of peddlers makes provisions for 
an annual license only, and there is no provision or authority 
for accepting less than the annual license fee where the license 
is desired for less than one year. 

July 18, 1911. 

County ATTORNEY J. F. Kirey, 


Williamsburg, Iowa. 


Dear Siz: I am in receipt of your communication of the 17th 
instant advising that you have construed section 1347-a, supple- 
ment to the code, relating to the licensing of peddlers to mean that 
only an annual license may be granted; that is to say, that there 
is no authority for granting a license for six or three months or 
any shorter period than one year. You request to be advised as 
to whether I concur in this interpretation of the law. 

The department has had occasion frequently to construe this 
question and we have universally held that the law contemplates 
only an annual license. The wording of the act makes this clear 
wherein it states: ‘‘Peddlers plying their vocation in any county 
in this state outside of a city or incorporated town, shall pay an 
annual county tax of twenty-five dollars for each pack peddler or 
hawkers on foot, fifty dollars for each one horse conveyance, and 
seventy-five dollars for each two-horse conveyance.”’ 

Evidently an annual county tax does not mean a semi-annual or 


quarterly tax. 
Yours very truly, 


GEORGE COSSON, 
Attorney General. 


County AUDITOR—ExtTRA COMPENSATION NOT ALLOWED FOR RE- 
CEIVING Proor oN Pocket GoPpHERS.—The county auditor is 
not entitled to extra compensation for services in receiving 
proof of the destruction of pocket gophers where such proof 
is received for collecting bounty allowed by law. 


duly toot. 
Hon. O. W. WITHAM, 


Greenfield, Iowa. 


Dear Sir: Your letter of the 17th inst. to the attorney general 
in which you say your county has paid a bounty of 8 cents for 


68 ATTORNEY GENERAL’S OPINIONS 


pocket gophers and allowed the auditor and justice of the peace 
2 cents for each gopher as compensation for their services in re- 
ceiving proof, and that you had advised that the county auditor 
was not entitled to any compensation when the proof was made 
before him, but that a justice of the peace was entitled to such 
compensation when acting as registrar and taking proof of the 
destruction of the gopher, as provided by law, and requesting to 
be advised whether your ruling is correct, was referred to me for 
reply. 

The county auditor of your county has submitted substantially 
the same question, I understand, and he was advised that the 
question should be submitted to the county attorney and if there 
was doubt in his mind, that this department would render such 
assistance as it could. 

I assume from your statement that the bounty in question was 
paid prior to the taking effect of chapter 101, acts of the thirty- 
fourth general assembly, which amends section 2348-a of the supple- 
ment to the code, 1907, so as to fix the bounty at 10 cents for each 
pocket gopher, no more and no less. . 

I think you were entirely correct in holding that the county 
auditor was not entitled to any compensation in connection with 
the receiving of proof of the destruction of pocket gophers for the. 
purpose of collecting bounty. The provision in the law which per- 
mits the county board of supervisors to appoint registrars does not 
directly authorize the board to pay any compensation for the serv- 
ices to be rendered by such registrars and I think it extremely 
doubtful whether the board can pay for such service out of the 
county funds. I do not believe the board can apportion the bounty 
between the person destroying the gopher and the person who re- 
ceives the proof because the bounty clearly belongs to the person 
who destroys the gopher and makes proper proof. 


Respectfully yours, 
N. J. Les, 
Special Counsel. 


ATTORNEY GENERAL’S OPINIONS 69 


MArRIAGE LICENSES—WHEN IssuED.—Unless the clerk of the court 
to whom application is made for marriage license is acquainted 
with the parties he must take the testimony of competent and 
disinterested witnesses showing that the parties are competent 
to contract marriage. 7 

July 20, 1911. 


Mr. Auaust KRUEGER, 
No. 9952, Ft. Madison, Iowa. 


Dear Sir: Your letter of the 9th inst. addressed to Attorney 
General Cosson has been handed to me for reply. 

You first inquire whether there is any law in this state fixing 
the age at which children may be permitted to testify in court 
proceedings. We do not have any statute covering this subject 
and courts permit children to testify where it is shown that they 
understand the nature and solemnity of the oath. This is a matter 
to be determined by the court. 

In your second inquiry you ask if there is any law requiring a 
couple who make application for marriage license to make affidavit 
as to their age. Section 3142 of the code reads as follows: 


‘‘Unless the clerk is acquainted with the age and qualifica- 
tion of the parties for the marriage of whom the license is 
asked, he must take the testimony of competent and -disinter- 
ested witnesses on the subject. He must make an entry of 
each application made for the issuance of a license, stating 
that he was acquainted with the parties and knew them to be 
competent to contract a marriage, or that the requisite proof 
of such fact was made to him by one or more witnesses named, 
in a book kept for that purpose, which shall constitute a part 
of the records of his office.’’ 

If either party making application for a license is a minor, it 
is necessary for such party to have the consent of his or her parents 
or guardian. 

Yours very truly, 
JOHN FLETCHER, 
Assistant Attorney General. 


70 ATTORNEY GENERAL’S OPINIONS 


TAXATION—BANK StTockK—DeEpuctions.—In taxing the shares of 
stock in national banks no deductions should be made on ac- 
count of the fact that part of the capital of the bank may be 
invested in non-taxable securities. | 

July 21, 1911. 

Mr. F. P. HENDERSON, ee 


Indianola, Lowa. 


Dear Sir: Again referring to the taxation of stock to share- 
holders in national banks, I regret that I have not had time since 
writing you on June 3d to re-examine the question; but after a 
re-examination J find my letter to you on June 3d expresses my 
opinion upon the question, and that is that if a law taxes only the 
shares of stock of national, state and savings banks and loan and 
trust companies to the individual shareholder, and there is no dis- 
crimination between national banks and other banks and other 
moneyed capital as the term is used in section 5219 of the revised 
statutes of the United States, that this does not amount to a tax 
upon United States securities, and that therefore no deduction 
may be made. | 

In the case of Home Savings Bank vs. Des Moines, 205 U. S., 
page 503, the court on page 517 said: The tax on an individual 
in respect to his shares in a corporation is not regarded as a tax 
upon the corporation itself.’’ And on page 518, the court said: 
‘‘The Van Allen case has settled the law that a tax upon the 
owners of shares of stock in corporations in respect of that stock 
is not a tax upon United States securities which the corporations 
own. * * * * ‘The theory sustaining these cases is that the 
tax was not upon the corporations’ holdings of bonds, but: on the 
shareholders’ holdings of stock, and an examination of them shows - 
that in every case the tax was assessed upon the property of 
the shareholders and not upon the property of the corporation 
* * * * On the other hand, whenever, as in these cases, the 
tax has been upon the property of the corporation, so far as that 
property has consisted of such securities, it has been held void.’’ 

Yours very truly, 
GEORGE Cosson, 
Attorney General. 


ATTORNEY GENERAL’S OPINIONS 1 


SALARIES OF COUNTY OFFICERS—How DETERMINED.—Where the 
population is changed as shown by the last preceding national 
or state census and the compensation of a public officer is 
made to depend upon the population, it will be governed by 
the population as shown by the new census. 


July 24, 1911. 
County ATTORNEY E. M. Sasin, ) 


Northwood, Iowa. 


DEAR Sir: I am in receipt of your communication of the 22d 
instant directing my attention to chapter 3, acts of the thirty- 
fourth general assembly, and requesting an opinion as to the exact 
date this act affects salaries of county officers in the event the popu- 
lation is either increased or decreased by the federal census. 


Section 1 of the act provides: 


‘Whenever a general census is taken by the national gov- 
ernment, it shall be the duty of the secretary of state to pro- 
cure from the supervisor of such census, or other proper fed- 
eral official, a copy of such part of said census as gives the 
population of the state of Iowa, by counties, and the popula- 
tion of the cities and towns of Iowa, and file the same in his 
office. He shall then, at once, cause such census report, giving 
the population of the state by counties, and the population of 
the cities and towns of Iowa, to be published once in each of 
two daily newspapers of the state having general circulation, 
and from and after the date of such publication said census 
shall be in full foree and effect throughout the state.’’ 


It is to be observed that the section provides that it shall be in 
full force and effect from and after the date of the publication 
of said census. 

Publication of the census was made on the 27th day of March, 
1911, and hence from and after that date the salaries of your 
county officers, which are governed by the population, will be con- 
trolled by the new census. This seems to me to be so clear as to 
be beyond controversy. 

Yours very truly, 
GEORGE Cosson, 
Attorney General of Iowa. 


72 ATTORNEY GENERAL’S OPINIONS 


Lanp ConTRACTS—TAXATION oF.—A land contract when taxable 
as moneys and credits should be taxed for the year com- 
mencing January Ist next after its date. 


July 29, 1911. 
Hon; J. 2: HER TERT; 


Harlan, Iowa. 


Dear Sir: Your letter of the 27th inst. to the attorney general 
was referred to me for reply. 

You inquire whether a contract of sale of a tract of land en- 
tered into in September last is assessable to the vendor as a credit 
for the year 1910. : 

I do not understand that right to tax this contract as a eredit 
at all is involved but merely whether it should be listed for taxa- 
tion for the year 1910. As to whether it is lable to be assessed 
at all would depend somewhat upon its terms, but I assume from 
what you say that it is liable. The cases reported in the 122nd 
Iowa at page 375 and in the 126th Iowa, page 637, would prob- 
ably determine whether the contract is subject to assessment. In 
these cases there was no attempt to assess them as for the year 
in which they were made but the supreme court held that they 
should be assessed for the year following their making. 

In view of the fact that all property is valued and listed for 
the purpose of taxation as of January Ist in each year, it would 
seem that the contract you mention would not be assessable for the 
year 1910. 

Yours very truly, 
N. J. Les, 
Special Counsel. 


BANKS—PRIVATE—TAXATION OF.—The taxation of private banks 
is covered by code sections 1305 and 1321, supplement to the 
code, 1907, as amended, the provisions of which are discussed. 


July 29,394, 
Mr. Mitton UPDEGRAFF, 


Department of Navy, 
Washington, D. C. 


DEAR Sir: Your letter of the 26th instant addressed to the 
attorney general was referred to ine for reply. 


ATTORNEY GENERAL’S OPINIONS 73 


I note that you desire to know the present law concerning the 
taxation of moneys and credits in this state, and particularly the 
taxation of the stock of private banks, and request to be furnished 
a copy of the law. 

Our last general assembly passed ; an act providing for the taxa- 
tion of shares of stock in state and national banks, trust com- 
panies, moneyed capital and moneys and credits, a copy of which 
I enclose. | 

There is another section of our statute which deals with the 
taxation of private banks, being section 1321 of the supplement to 
the code, 1907, which reads as follows: 


‘‘Private banks or bankers, or any person other than cor- 
porations hereinafter specified, a part of whose business is the 
receiving of deposits subject to check, on certificates, receipts, 
or otherwise, or the selling of exchange, shall prepare and fur- 
nish to the assessor a sworn statement, showing the assets, 
aside from the real estate, and labilities of such bank or 
banker on January first of the current year, as follows: 

‘1. The amount of moneys, specifying separately the 
amount of moneys on hand or in transit, the funds in the 
nands of other banks, bankers, brokers or other persons or 
corporations, and the amount of checks or other cash items 
not included in either of the preceding items; 

‘9. The actual value of credits, consisting of bills receiv- 
able, owned by them, and other credits due or to become due. 

‘¢2.° The amount of all deposits made with them by others, 
and also the amount of bills payable ; 

‘‘4 The actual value of bonds and stock of every kind 
and shares of capital stock or joint stock of other corpora- 
tions or companies held as an investment, or in any way 
representing assets, and the specific kinds and description 
thereof exempt from taxation; 

‘5. All other property pertaining to said business, includ- 
ing real estate, which shall be specially listed and valued by 
the usual description thereof ; 

‘‘The aggregate actual value of moneys and credits, after 
deducting therefrom the amount of deposits and the aggre- 
gate actual value of bonds and stocks, after deducting the 
portion thereof otherwise taxed in this state, and also the 
other property pertaining to the business, shall be assessed as 
provided by section thirteen hundred and five (1805) of this 


74 ATTORNEY GENERAL’S OPINIONS 


chapter, not including real estate, which shall be listed and 

assessed as other real estate.’’ : 

I have quoted this section as amended by section 2 of the act 

which I enclose. The act I enclose is now officially designated as 
chapter 63, acts of the thirty-fourth general assembly. 

Yours very truly, 
N. J. LEs, 
Special Counsel. 


PUBLICATION OF OFFICIAL PROCEEDINGS.—The report of the county 
treasurer, the board of supervisors and township clerks should 
be published in itemized form but the report of the expert 
accountant showing result of his examination of the books of 
the county officers is not part of the board proceedings and 
need not be published. 


Mr. O. E. SMITH, August 7, 1911. 
Spirit Lake, Iowa. 

Dear Sir: Yours of the 8rd inst. addressed to the attorney gen- 
eral has been referred to me for reply. 

Your questions briefly stated are: 

‘1. Should the county treasurer’s report be published at the 
~ close of the business, January and July 1st, of each year? — 

‘*2. Is it not necessary that all board proceedings be published 
under the laws of Iowa? 

**3. Should not the reports of the township clerks be pub- 
lished in itemized form? | 

‘‘4. Should the expert accountant’s report of his examination 
of the books of the county ‘officers be published as board -pro- 
ceedings?’’ — 

I think each of the foregoing interrogatories song be sty ced 
in the affirmative, except the last one, which should be answered 
in the negative. 

For decisions bearing upon this matter, I call’ your attention 
to the following cases: 

Haslett vs. Howard County, 58 Iowa, 377; 
McBride vs. Hardin County, 58 Iowa, 219; 
Clark vs. Lake, 124 N. W. 866. 

Yours truly, 


: : C. A. Rossing, 
- Ria, s oes Assistant Aitorney General. 


ATTORNEY GENERAL’S OPINIONS 75 


CITIES AND TowNs—Uss& oF County JAtL.—Cities and towns have 
the right to use the county jail for the confinement of prison- 
ers but are lable to the county for the cost of keeping such 
prisoners. 

August 21, 1911. 

Mr. F. B. ManseEn, 


Eddyville, Iowa. 


Dear Sir: Yours of the 14th inst. addressed to the attorney 
general has been referred to me for reply. Your inquiry is with 
reference to the right of the constable to have access to and the 
use of the jail. I know nothing about the former conference be- 
tween the constable and the attorney general, and you fail to 
state in your letter whether or not the jail is one maintained by 
the city or by the county. 

Inasmuch as your town is not the county seat I assume that 
the jail to which you refer is one maintained by the city, under 
code section 735, which provides: 


‘Cities and towns shall have power to erect, establish, and 
maintain a city jail which shall be in keeping of the marshal, 
under such rules and regulations as the council shall pro- 
vide.’’ 


Unless the council had adopted the rule or regulation by which 
county prisoners could be kept in this jail, a constable having in 
charge a prisoner charged with or convicted of a crime against 
the state laws as distinguished from the ordinances of the city, 
would not have the absolute right to confine prisoners in such 
jail. But he would have the right to confine such prisoners in 
any county jail within the county. 


Code section 735, above cited, further provides: 


‘‘Any eity or town shall have the right to use the jail of 
the county for the confinement of such persons as may be 
liable to imprisonment under the ordinances of such city or 
town, but it shall be liable to the county for the cost of 
keeping such prisoners.”’ 


There is no corresponding provision in the statute authorizing 
counties to use city jails by compensating the city for the cost of 
keeping such jails, and for this reason the city marshal would have 
exclusive control of the city jail in the absence of a rule or regula- 
tion by the council as above suggested. 


76 ATTORNEY GENERAL’S OPINIONS 


If the ordinances of the town provide ample punishment for 
the erime in question, prosecutions could be instituted under the 
ordinances instead of under the state laws, and thus avoid all 
question as to the right to use the city jail. I take it, however, 
from your letter that the officers of the town are not strong on 
law enforcing, and while this may be true, yet in a clear case 
they would hardly dare to fail to perform their duty, especially 
in view of chapter 78 of the laws of the thirty-third general as- 
sembly, section 1 of which provides: 


‘“Any county attorney, sheriff, mayor, police, marshal, or 
constable, shall be removed from office by the district court 
or judge upon charges made in writing and hearing there- 
under for the following causes: 


“1. For wilful or habitual neglect or refusal to perform 
the duties of his office. 


‘*2. For wilful misconduct or maladministration in office. 
3 For corruption, . 


Yours truly, 
C. A. Ropsins, 
Assistant Attorney General. 


AUTOMOBILES—AGE OF OPERATOR.—Persons under age of fifteen 
years not authorized to operate a motor vehicle unless accom- 
panied by the owner. 

August 24, 1911. 

Wawpo Lunpt, 


Linn Grove, Iowa. 


DEAR Srr: Answering your inquiry of the 3rd inst. addressed 
to the attorney general, I will say that a person under fifteen 
years of age is not authorized to operate a motor vehicle unless 
accompanied by the owner thereof. 


Respectfully yours, 
N. J. Les, 
Special Counsel. 


ATTORNEY GENERAL’S OPINIONS 77 


Crry OFFICIALS—CoMPENSATION NoT TO BE CHANGED DurING TERM 
oF OFFICE.—Code section 667 prohibits any change in the 
compensation or emoluments during term of office for which 


they are appointed or elected. 
September 5, 1911. 
Mr. S. W. Bryant, 


Centerville, Iowa. 


Dear Sir: Yours of the 4th inst., addressed to the attorney 
general, has been referred to me for reply. 

Code section 667 is the provision that would govern in your 
case, and it provides in substance as stated by you, that the com- 
pensation or emoluments of city officers shall not be changed dur- 
ing the term of office for which they are elected or appointed. 

In order to make the matter doubly sure, it is further provided 
that no person shall be eligible to re-election or reappointment 
after having resigned for any part of the term covered by his 
‘previous election or appointment, where there had been an in- 
crease made in the compensation. 

Our supreme court has held in the case of Cox vs. Burlington, 
43 Ia., 612, that such an increase could not be made during the 
interim between the election and the qualification of the officer. 

And the rule that the compensation could not be increased was 
again recognized in the case of Council Bluffs vs. Waterman, 86 
Ta., 688. 

It is, therefore, my opinion that there is no way in which the 
compensation of a city officer can be increased during the term 
of office; and if the matter is of sufficient importance that the in- 
crease be made, that the only way I know of would be to permit the 
present officers to resign, the increase be made, and the new offi- 
cers be elected or appointed. 

While this is probably not what your city would desire to do, 
yet it is the only way that an increase could be made at the present 
time. An increase might be provided for now to take effect with 
the next regular election or appointment of officers. 

Yours truly, 
C. A. Rossins, , 
Assistant Attorney General. 


78 ATTORNEY GENERAL’S OPINIONS 


AUTOMOBILES—REGISTRATION—KiInpsS Exempr.—Chapter 72, acts 
of the thirty-fourth general assembly providing for the reg- 
istration of automobiles excepts from its operation motor 
trucks, motor drays, motor delivery wagons, traction engines, 
road rollers, fire wagons and engines, police patrol wagons, 
ambulances and such vehicles as run only upon rails or tracks. — 


September 5, 1911. 
County ATTORNEY C. N. JEPSON, | 


Sioux City, Iowa. 


Dear Sir: I am in receipt of your communication of the 28th 
ultimo advising that the question has been presented as to the 
necessity of registration of motor trucks, drays and wagons, and . 
automobiles used for this purpose, and the payment of the an- 
nual registration fee as prescribed by chapter 72, acts of the 
thirty-fourth general assembly. 

Section 2 chapter 72 aforesaid provides that the term ‘‘motor 
vehicle’? as used in said act, except where otherwise expressly 
provided ‘‘shall include all vehicles propelled by any power other 
than muscular power, except motor trucks, motor drays, motor de- 
livery wagons, traction engines, road rollers, fire wagons and en- . 
gines, police patrol wagons, ambulances, and such vehicles as run 
only upon rails or tracks.’’ | 

It will be noted that the act does not except an automobile used 
as a motor truck, a motor dray or motor vehicle. 

I am of the opinion, however, that the term properly construed 
would include all motor vehicles which were constructed exclu- 
sively for the purpose of a truck, dray or delivery wagon, and 
not for the purpose of transportation of persons, and that said 
term would also include automobiles which had been so. trans- 
formed by the owner as to be available only for use as a motor 
truck, delivery or dray wagon and actually used exclusively as 
such truck, dray or delivery wagon. If, however, the automobile is 
left in such condition that it either ean or is used for pleasure 
or business in the way of transporting passengers instead of freight, 
that application for registration number should be made in the 
regular way and the regular registration fee paid; in other words, 
I am of the opinion that any automobile which is in condition 
to be used for the transportation of passengers, or which is ac- 
tually used in the transportation of passengers should be regis- 
tered, numbered and fee paid, and that an automobile so modified 


ATTORNEY GENERAL’S OPINIONS 79 


in its construction that it can only properly be used in the trans- 
portation of freight, coupled with the fact that it is exclusively 
used for such purpose, would bring it within the exception of 
section 2, chapter 72 of the acts of the thirty-fourth general as- 
sembly; in which event, no registration would be necessary and 
no fee required thereon. 
This is also the position taken by the secretary of state. 
Yours very truly, 
GEORGE COSSON, 
Attorney General of Iowa. 


SPECIAL ASSESSMENTS—RATE OF INTEREST AFTER DELINQUENT.— 
Special assessments levied under provisions of code section 825 
draw the rate of interest fixed in the ordinance until such as- 
sessment becomes delinquent, after which the interest is at the 
rate of one per cent per month the same as other delinquent 
taxes. 

September 7, 1911. 


Mr. C.-C. Hunt, 
Secretary County Treasurers’ Association, 
Montezuma, Iowa. 


DEAR Sir: Your letter of August 30th, addressed to the attor- 
ney general, has been referred to me for reply. 

Your question briefly stated is: ‘‘What rate of interest or penalty 
should be collected on special assessments after such assessments 
become delinauent, under the provisions of code section 8252’’ 

This section provides for the levying of special assessments, and 
that when the owner of the property takes certain steps he is en- 
titled to pay the special assessment in seven equal annual instal- 
ments, with interest prescribed by the ordinance not exceeding six 
per cent. re 

It will be observed that the first instalment of the assessments is 
payable on the date of such assessment, and the others, with in- 
terest on the whole amount not paid, annually thereafter, at the 
same time and in the same manner as the March semi-annual pay- 
ment of ordinary taxes; and that, where the owner of the property 
does not avail himself of the right to pay in annual instalments, 
the whole assessment ‘‘shall mature at oné time and be due and 


80 ATTORNEY GENERAL’S OPINIONS 


payable, with interest, on the date of such assessment, shall be col- 
lected at the next succeeding March semi-annual payment of or- 
dinary taxes.’’ ‘‘ All such taxes with interest shall become delin- 
quent on the first day of March after their maturity, and shall 
bear the same interest with the same penalties as ordinary taxes.”’ 
Turning to section 1413 of the code, which provides the interest 
and penalty for ordinary taxes, we find the following language: 


‘‘Tf the first instalment of taxes shall not be paid by April 
Ist, the whole shall become due and draw interest as a penalty 
of one per cent per month until paid from the first of March 
following the levy.’’ 


It is a well established rule that a statute imposing or creating 
a penalty is to be strictly construed, and no penalty exacted there- 
under which is not clearly provided therein. With this rule of law 
in mind, it would seem to be clear that the six per cent interest (if 
that be the amount provided for in the ordinance) should be com- 
puted from the date of the maturity of the assessment until the 
date on which it became delinquent, and that thereafter the in- 
terest or penalty should be one per cent per month upon the de- 
linquent instalment, the same as ordinary taxes. 

The phrase ‘‘and shall bear the same interest with the same 
penalties,’’ made use of in the latter part of section 825, was prob- 
ably employed, not for the purpose of providing a penalty in addi- 
tion to the interest, but because the interest provided for delin- 
quent ordinary taxes was designated by the words ‘“‘interest as a 
penalty.’ 

In other words, the latter part of section 825 should be construed 
the same as though it we “and shall bear the same interest or 
penalty as ordinary taxes.’ 

While the meaning of the language is not antively clear, and I 
can see that some might claim a different construction, yet in view 
of the rule referred to, I firmly believe that the courts would con- 
strue this section as above indicated. 

Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 81 


Pott TaxeEs—Wuo REQUIRED TO WorK.—An able bodied man who 
reaches his forty-fifth year before the expiration of the road 
working period should be warned out before reaching the age 
of forty-five or he will not be bound to work his poll tax that 
year. 

Mr. Ropert E. Groves, September 9, 1911. 


Douds Leando, Iowa. 


DEAR Sir: Replying to your letter of the 7th inst., addressed 
to the attorney general, will say that the provision, with reference 
to poll tax is found in section 1550 of the code supplement and 
reads as follows: 


‘‘The road supervisor shall require all able-bodied male resi- 
dents of his district, between the ages of twenty-one and forty- 
five, to perform two days’ labor upon the roads, between the 
first day of April and October of each year.”’ 


In my opinion, a proper construction of this section would 
authorize the supervisor to require a man to work the two days in 
each and every year after he was twenty-one years of age, until he 
was forty-five years of age, i. e., if during the current year he 
reached the age of forty-five before the Ist day of April, then he 
would not be liable for that year, even though his name was on the 
books as age 44. If he is to reach the age of forty-five years be- 
tween the Ist day of April and the Ist day of October, then in 
order to get the work for that year, he must be warned out in time 
so that he can do the work before he reaches his forty-fifth birth- 
day ; otherwise, he will not be liable for that year. 

Yours truly, 
C. A. RoBBIns, 


Assistant Attorney General. 


INSANE PrERsSonS—Custopy or BrErorE CoMMITMENT.—Where a 
person is charged with being insane it is the duty of the com- 
missioners to provide for his custody until their investigation 
shall be concluded and they may surrender him to the sheriff 
and he may be kept in the county jail in charge of the sheriff. 


Wm. L. Becxer, September 13, 1911. 
President Commissioners of Insamty. 


Dubuque, Iowa. 
Dear Sir: Mr. T. J. Fitzpatrick, of your city, recently ad- 
dressed a letter to the attorney general in which he requested that 


6 


82 ATTORNEY GENERAL’S OPINIONS 


you be advised with reference to the authority of commissioners of 
insanity to confine a person charged as being insane pending a 
hearing, which letter has been referred to me for reply. 

The weight of authority is to the effect that an adjudication of 
insanity is a prerequisite to commitment to an asylum. 


22 Cyc., 1158, Note 85. 


However, our statute, code section 2265, provides with reference 
to the authority of the commissioners as follows: 


‘‘And may require that the person for whom such admission 
is sought be brought before them. * * * They may issue 
their warrant therefor, and provide for the custody of such 
person until their investigation shall be concluded, which war- 
rant may be executed by the sheriff or any constable of the 
county.’’ 


Section 2271 provides: 


‘‘In the case of public patients the commissioners shall re- 
- quire that they be in like manner restrained and protected and 
cared for by the board of supervisors at the expense of the 
county, and they may accordingly issue their warrant to such 
board, who shall forthwith comply with the same. If there 
is no poor house for the reception of such patients, or if no 
more suitable place can be found they may be confined in the 
jail of the county in charge of the sheriff.’’ 


While it is true that the latter provision above quoted confers 
upon the board authority to provide with reference to the custody 
of the patient after the person has been found to be insane and 
pending an appeal, yet it seems to me that the authority conferred 
by the first cited section to ‘‘provide for the custody’? would 
authorize the board to make specifically the same provision as is by. 
the statute made in section 2271, and while they would have no — 
authority to commit the party to an insane asylum for any specific 
length of time, yet the mere fact that the place in which they 
ordered him to be cared for pending their investigation happens 
to be a private hospital in which insane persons are kept and cared 
for would not render such restraint illegal or render the members 
of the commission liable for damages on account of their having 
ordered him to be there confined. 

It should be borne in mind, however, that the statute contem-- 
plates a speedy investigation and it would only be in a rare cage 


ATTORNEY GENERAL’S OPINIONS 83 


that there would be any necessity for such order. In fact, I doubt 
if any such order would be necessary in any case. The warrant of 
the commissioners to the sheriff or constable is sufficient authority 
under which the patient might be retained in custody by the sheriff 
or constable and it might well be left to the sheriff or constable 
having the patient in custody to arrange for a place in which to 
keep the patient until the conclusion of the investigation. 
Yours very truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


SOLDIERS—F'UNERAL EXPENSES oF—How Parp.—The funeral ex- 
penses of honorably discharged, indigent United States soldiers 
may be paid from the fund provided by the tax authorized 


in code supplement section 430. 
September 18, 1911. 


Hon. Wo. J. GREENE, 
Clinton, Iowa. 


My Dear Sir: Your letter of the 16th inst. to the attorney 
general was referred to me for reply. 

You request an opinion as to whether the funeral expenses of 
an honorably discharged soldier of the United States can be paid 
from the fund provided by the tax referred to in section 430 of 
the supplement to the code, 1907, unless it be shown that such 
soldier did not leave sufficient means to defray the expenses of his 
funeral. 

Section 430 referred to provides that a tax may be levied to 
create a fund for the relief of and to pay the funeral expenses of 
honorably discharged indigent United States soldiers, sailors, ete. 
It appears from this that in order to be entitled to have such ex- 
penses paid from this fund the deceased soldier must have been 
indigent. I take this to mean dying without sufficient means to 
defray the expenses of a suitable funeral. I think this relates to 
the financial condition of the deceased and not to the ability of 
relatives to provide burial. 

A substitute was enacted for section 433 of the supplement to 
the code, 1907, which provides that the board of supervisors shall 
designate some suitable person in each township to cause to be 
decently interred the body of any honorably discharged soldier, 


84 ATTORNEY GENERAL’S OPINIONS 


sailor or marine who served in the army or navy of the United 
States during any war, who may die without leaving sufficient 
means to defray the expenses of his funeral. 

I think, therefore, such funeral expenses are authorized to be 
paid where the circumstances of the deceased were as above sug- 
gested, regardless of the financial condition of the widow and I 
do not believe that the widow can be required to make a showing 
to the effect that she is indigent or is a pauper before the funeral 
expenses of her deceased husband are paid out of this fund. 

Respectfully yours, 
N. J. Les, 
Special Counsel. 


CouNTY OFFICERS—COMPENSATION—EXTRA COMPENSATION Not 
PERMITTED.—No contract may lawfully be made looking to 
allowance or payment to a public officer of any other or greater 
compensation than that fixed by law. 


| September 18, 1911. 
EK. B. Stites, County Attorney, 


Manchester, Iowa. 


DEAR Sir: Replying to yours of the 16th inst. addressed to the 
attorney general in which you make inquiry as to the duty, as 
well as the right of the board of supervisors to allow the county 
auditor extra compensation on account of the extra work imposed 
by the last legislature, will say that the attorney general has no 
recollection of having made any oral statement such as that to 
which you refer. If any such statement was made either by the 
attorney general or by any of the assistants, it was doubtless along 
the line that the legislature should provide additional compensa- 
tion for the extra work imposed. I think the matter is controlled 
by the decision of our supreme court in the case to which you 
refer, Benton vs. Decatur county, Iowa, 36 Iowa, 504. See also 
Massie vs. Harrison county, 129 Iowa, at 280, where the supreme 
court says: ‘‘and we have distinctly ruled in several cases that no 
contract can be made looking to the allowance or payment to a 
public officer of any other or greater compensation than that fixed 
by law.’’ And if public money is paid pursuant to such a con- 
tract it may be recovered back. Massie vs. Harrison county, 129 
Iowa, at 280. Heath vs. Albrook, 123 Iowa, 559, at 568. 

Very truly, 
| C. A. Rossins, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 85 


Pusiic OFFICIALS—ELECTIVE OFFICERS Must BE CITIZENS—AP- 
POINTIVE OFFICERS DousTFruL.—None but qualified electors may 
hold an elective office. Whether one not a qualified elector is 
eligible to an appointive office, query. 


September 26, 1911. 
Mr. JAMES GRAHAM, 


Moville, Iowa. 


Dear Sir: Yours of the 25th inst. addressed to the attorney 
general has been referred to me for reply. 


The question is, whether or not one not a citizen of the United 
States can hold an appointive office in any department of the state 
government. 

Citizenship, although usually expressly required either by the 
constitution or statutes, would not seem in the absence of such 
requirement to be an absolutely necessary qualification for office. 
29 Cyc., page 1377. But it has sometimes been held that it is a 
necessary qualification for elective office, even in the absence of the 
constitutional or statutory provision to that effect. 29 Cyc., 1377. 
State vs. Van Beek, 87 Iowa, at page 577. 

In the last cited case our supreme court held that. the office of 
sheriff could not be filled by an alien, and in the course of the 
opinion, made use of the following language: ‘‘There is no pro- 
vision in our constitution or statute upon that subject, yet it is 
certainly a fundamental principle of our government that none 
but qualified electors can hold an elective office, unless otherwise 
specially provided.’’ The office of state veterinary surgeon, as 
well as the office of his assistant, are not elective offices, but ap- 
pointive offices. There is no constitutional provision specifying 
the qualifications of either. The statute, code supplement, section 
2529, requires that the state veterinary surgeon shall be a graduate 
of some regularly established veterinary college and skilled in that 
science, and no other qualifications are specifically required. Code 
supplement, section 2533 provides: ‘‘The governor may appoint 
such assistant state veterinary surgeons as may be deemed ad- 
visable,’’ and there are no further qualifications provided for in 
the statute. While there are many reasons why an officer should 
be a citizen of the state, which would apply with equal force to an 
appointive and to an elective office, yet there are some appointive 
offices where some of these reasons would not apply with such 
force. The exact question propounded by you is an open one in 


86 ATTORNEY GENERAL’S OPINIONS 


this state and is so close that it would not be wise for this depart- 
ment to undertake to determine the matter one way or the other, 
as it is a question which will doubtless arise in the courts before 
long, yet we have given you the benefit of the only decision of our 
court which would have any bearing on the matter. 
Yours truly, 
C. A. RoBBINS, 


Assistant Attorney General. 


TAXATION—VALUE OF PRoPERTY.—Registered animals should be 
assessed at their actual value. Sometimes the registration adds 
to the value of the animal but this is not always so. 


October 10, 1911. 
Mr. W. L. PEASE, 


Washta, Iowa. 


Dear Sir: Your letter of the 6th inst. addressed to the attorney 
general was referred to me for reply. 

You inquire whether the board of supervisors or the assessor 
is empowered to fix a higher taxable value on recorded animals 
than on those which are not recorded. | ) 

The attorney general cannot officially advise you in a matter 
of this kind but in this instance I may say in a personal way, as 
a courtesy to you, that the law requires that all property be 
assessed for taxation upon the basis of its actual value and one- 
fourth of such value is the assessable value and the mere fact that 
an animal is registered would not in and of itself determine whether 
it should be valued higher or lower than an animal which is not 
registered. Of course, ordinarily, it will be presumed that regis- 
tered animals are more valuable, but it would not necessarily be’ 
so in every case. The value for purposes of taxation should be 
fixed according to the fact in each case. 


Respectfully yours, 
N. J. Lee, 
Special Counsel. 


ATTORNEY GENERAL’S OPINIONS 87 


UNITED STATES SOLDIERS—DEFINED.—The term ‘‘ United . States 
Soldier’’ as used in code supplement section 4380 would in- 
clude soldiers who served in the Spanish-American war. 


October 13, 1911. 
Mr. Henry Howarp, Pension Attorney, 


Clinton, Iowa. 


Dear Sir: Your letter of the 12th inst. addressed to the at- 
torney general was referred to me for reply. 

You request to be advised whether Spanish war veterans and 
their wives are entitled to relief out of the fund provided for the 
relief of indigent soldiers and their widows. 

You also inquire whether relief may be furnished to persons who 
have property and not entitled to it. 

Your first question must be answered in the affirmative and the 
second question in the negative. Section 430 of the supplement to 
the code, 1907, provides that a certain tax may be levied for the 
purpose of creating a fund for the relief of and to pay the funeral 
expenses of honorably discharged, indigent United States soldiers, 
sailors and marines and their indigent wives, widows and minor 
children, ete. This would include, without question, soldiers who 
served in the Spanish-American war and their widows. 

The law provides that indigent soldiers and widows and chil- 
dren shall receive relief but I presume the commission having in 
charge the disbursement of such funds would have a reasonable 
discretion in determining who are indigent and needy persons and 
because one applying for relief from such funds has a certain 
amount of property it might not necessarily follow that he should 
be denied relief but if,. as you say, such applicant has property, 
and not entitled to the relief, it could not: be granted under thé law. 

You will not regard this in any sense as an official opinion from 
this department but merely as the personal views of the writer 
given as a courtesy to you. 

Respectfully yours, 
N. J. Lug, 
Special Counsel. 


88 ATTORNEY GENERAL’S OPINIONS 


Pott Tax—Wuo Lias_e For.—All able bodied male residents are 
liable to perform the two days’ labor on the roads required 
by code supplement section 1550 whether citizens of the United 


States or not. 
October 18, 1911. 
Mr. H. M. Barr, Township Clerk, 


Edgewood, Iowa. 


Dear Sir: Yours of the 18th inst. addressed to the attorney 
general has been referred to me for reply. 

Your question briefly stated is, whether an alien, or one not a 
citizen of the United States, is hable for poll tax. 


Code supplement section 1550 provides: 


‘‘The road supervisor shall require all able bodied male 
residents of his district between the ages of twenty-one and 
forty-five to perform two days’ labor upon the roads between 
the first days of April and October of each year.’’ 


Our supreme court has held that: ‘‘A resident of the state is 
one who resides permanently or for a time in the state.”’ 


Mann vs. Taylor, 78 Iowa, 355. 


Hence, in my opinion, a resident, whether a citizen or not, is 
lable for poll tax. 
Very truly, 
| C. A. Rossins, 
Assistant Attorney General. 


Board OF SuPERVISORS—METHOD OF BorrowinG Monzy.—It is 
doubtful if the board of supervisors havé power to borrow 
money by using warrants rather than bonds. 


November 10, 1911. 
Hon. HERBERT G. THOMPSON, 


Muscatine, lowa. 


Dear Sir: Your letter of the 24th inst. to the attorney general 
was referred to me for reply. I have not found time to notice 
your letter before now, owing to other matters in the department 
which demanded my attention. - 

You inquire whether the board of supervisors may lawfully cause 
to Ke issued a warrant against the general fund of the county for 


ATTORNEY GENERAL’S OPINIONS 89 


the purpose of obtaining funds with which to redeem warrants 
issued for the payment of claims duly filed and allowed. 

I have not had time to investigate this question sufficiently to 
enable me to express a positive opinion thereon but upon the in- 
vestigation I have made and the consideration I have given the 
subject it is my notion that the county cannot borrow money in 
the manner indicated. In my view the transaction, in legal effect, 
is the borrowing of money. The person who receives the warrant 
and furnishes the money has no claim against the county and there 
is no other consideration for the issuing of the warrant but the 
funds which are obtained. 

Under certain conditions the board of supervisors may fund or 
refund the debt of the county by issuing and negotiating bonds. 

Upon a careful investigation of this question the foregoing views 
may be found to be erroneous and if the matter is of sufficient 
importance to your board of supervisors, and you care to do so, you 
may prepare a brief of authorities upon which you rely in holding 
that the board of supervisors may borrow money in the manner 
you describe, and I shall be glad to go over your brief and change 
the views here expressed if found incorrect. 


Respectfully yours, 
N. J. Les, 


Special Counsel. 


TAXATION—VOLUNTARILY Parip CANNOT BE RECOVERED BackK.— 
Where one voluntarily pays a tax without taking necessary 
steps to ascertain whether or not it could lawfully be ex- 
acted of him it amounts to a voluntary payment under mis- 
take of law and cannot be recovered back. 


November 20, 1911. 


T. M. DoueHerty, County Attorney, 
New Market, Iowa. 


Dear Sir: Yours of the 15th inst. addressed to the attorney 
general in which you enclose a letter from Attorneys Henry & 
Henry bearing on the question of assessment of bank stock, has 
been referred to me for reply. 

This department has given this matter some previous investiga- 
tion and our advice has been against any cancellation of any un- 
paid tax and against refunding any tax collected under the old 


90 ATTORNEY GENERAL’S OPINIONS 


law, and there are several cases already pending in the various 
counties of the state, and doubtless some of these will go to the 
supreme court, and thus the matter will be finally determined. 

I take it for granted in the case that is referred to in the letter 
of Henry & Henry that there was no objection made to the assess- 
ment, and in fact, the same shares of stock had been assessed under 
the same law and taxes paid without question for a number of 
years. This being true, I think the case of Slimmer vs. Chickasaw 
County, 140 Iowa, 448, would preclude the bank from setting up 
the illegality of this law. There is a clear distinction between 
such case and the Estherville case, for in the Estherville case the 
parties resisted the assessment at all times,—before the board of 
review and ever afterwards, and hence, there could be no estoppel 
arise under such circumstances. In other words, our position is, 
that even though this law were void, the tax payers, by their ac- 
quiescence in taxation made under this law for so many years, 
are now estopped from setting up its invalidity. By the previous 
assessment and payment of tax by the tax payers under this law, 
the officers were led to believe that all parties regarded it as legal, 
and the county and other subdivisions of the state had doubtless 
incurred expenses based in part upon such belief, just as was said 
in the Slimmer ease. 

When one voluntarily pays a tax without taking the necessary 
steps to ascertain whether or not it could lawfully be exacted 
of him, it amounts to the payment of money under mistake of law 
and cannot be recovered back. | 


Ahlers vs. City of Estherville, 130 Iowa, 272, and cases cited. 
Yours very truly, 


C. A. RoBBIns, 
Assistant Attorney General. 


STATE OFFIcIALS—May Nor Br GARNISHED.—There is no statute 
authorizing the garnishment of a public official. The effect 
of a judgment against a garnishee in such case would be a 
judgment against the state and as the state may not be sued 
without its consent state officials cannot be garnished. 


Mr. M. M. O’Bryon, November 22, 1911. 
Marshalltown, Iowa. 


Dear Sir: Your letter of the 15th inst. addressed to the at- 
-torney general was referred to me for reply. 


ATTORNEY GENERAL’S OPINIONS 91 


_ You request an opinion from this department as to whether the 
treasurer of state can be garnished. 

It is my opinion that said officer cannot be garnished. In the 
first place there is no provision in the statute permitting the gar- 
nishment of such officer and in the next place it is, in my view, 
in legal effect a suit against the state because the necessary legal 
effect of a judgment against the garnishee would be to require the 
payment of funds of the state and the state would be the real party 
in interest and the real defendant. It is fundamental that the 
state cannot be sued in its own courts without its consent. 


Respectfully yours, 
N. J. LE&s, 


Special Counsel. 


INCOMPATIBLE OFFICES.—The offices of city councilman and eounty 
supervisor are incompatible and both may not. be held by the 


some person at the same time. 
December 6, 1911. 


Mr. J. 8. FIsK, 
Guthrie Center, Iowa. 


DeEaArR Siz: Your letter of the 5th inst. addressed to the attorney 
general was referred to me for reply. 

You request an opinion from this department, first, whether the 
same person at the same time may hold the office of city council- 
man of a city and that of a member of the board of supervisors 
and, second, whether the rules of the state board of health apply 
to your city. 

It is my opinion that your first question should be answered in 
the negative and your second in the affirmative. 

In my view the offices of city councilman and county supervisor 
are incompatible under the rules of the common law and may not 
be held by the same person at the same time and the acceptance 
of one of said offices while holding the other has the effect of at 
once creating a vacaney in the first office. 

If I had the time I believe I could cite a number of instances 
where the duties of the two offices would conflict or where one of 
the offices would be subordinate to the other. 

Respectfully yours, 
N. J. Les, 
Special Counsel. 


92 ATTORNEY GENERAL’S OPINIONS 


TAXATION.—Omitted property may be assessed for taxation by the 


county treasurer. 
) December 7, 1911. 
Mr, Louis E. Fay, 


Clinton, Iowa. 


Dear Sir: Your letter of November 17th addressed to the at- 
torney general has been referred to me for reply, and I have been 
unable to give the same sufficient investigation to enable me to 
answer until this time. 

You refer to the suggestion that the treasurer should assess the 
bank stock to the individual owners of the property as omitted 
property, and ask, ‘‘Can you see any harm in the assessment by 
the treasurer ?”’ | 

As a general proposition, I think that in view of all the cireum- 
stances, the treasurer might lst the property as having been 
omitted. 

Our supreme court has held that the taxing officers may use any 
means at their command in assessing national bank stock to arrive 
at its actual market value, and they are not bound by the book 
value, but may ascertain its actual value the same as any other 
tangible property. 


First National Bank vs. Estherville, 186 Ia., 203. 


An assessment of such stock as omitted property was upheld by 
our supreme court in the case of Judy vs. Beckwith, 133 Iowa, 252. 

As I understand it, the only question involved is, with reference 
to the tax for the year 1910, and if this be true, then there is ample 
time to assess the property as having been omitted after the deter- 
mination of the suit now pending, and it may be determined that 
the assessment already made is legal, or at least that the parties 
are estopped from setting up its illegality. 

I am enclosing a copy of this letter to Mr. Oakes. 

Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 93 


OFFICIAL SHORTHAND REPORTER—COMPENSATION OF.—Money earned 
by a reporter outside of his official duties and in another 
judicial district should not be taken into account in fixing his 
salary. 

December 8, 1911. 

Mr. J. M. McLAvuGHuin, 


Burlington, Iowa. 


DEAR Sir: Replying to your letter of the 7th inst. more fully 
stating your situation with reference to the reporter’s salary, will 
say that code supplement section 254-a2, from which I quoted in 
my letter of the 4th inst., further provides: 


‘* And in ease the total per diem of each reporter shall not 
amount to the sum of one thousand six hundred dollars per 
year, the judge appointing him shall, at the end of the year, 
apportion the deficiency so remaining unpaid among the sev- 
eral counties of the district, * * * * in proportion to 
the number of days of court actually held by said judge in 
such counties.’’ 


‘ ) 


In my judgment, the term ‘‘such counties’’ refers to the several 
counties of the district, and that in making the apportionment 
provided for in this section, the judge was limited to the counties 
of his own district, and would have no right to take into account 
any services rendered or compensation received by his reporter 
while attending court in any other district between terms of court 
in his own district. In other words, the $1,600.00 salary is in- 
tended as compensation for the service to be rendered in his own 
district, and where, as in your ease, the entire service of the dis- 
trict has been performed by you, there is no authority for adding 
to your per diem the number of days served in your vacation in 
another county for the purpose of reducing the amount of your 
deficient salary. There would be no more reason for taking this 
into account than there would be for taking into account compensa- 
tion which you might have received for doing private work during 
vacation and deducting that from the amount of your salary. 

Yours truly, 
C. A. Rossins, 
Assistant Attorney General. 


94 ATTORNEY GENERAL’S OPINIONS 


County—LiA4BLE For Fumigation.—The county is not liable for 
the expense of fumigation of a church or school building occa- 
sioned by an epidemic of cerebro-spinal meningitis or infantile 
paralysis. : 

December 8, 1911. 

Hon. Frank L. May, 


Lansing, Iowa. 


Dear Siz: Your communication of the 3d ult. to the attorney 
general has been referred to me for reply. You request an opinion 
from this department upon the questions arising upon the state 
of facts you set forth in your letter which, in so far as they are 
material, are as follows: 


‘‘A certain person, a pauper, was in the employ of a well- 
to-do farmer of this county as a servant girl and while so 
employed became afflicted with infantile paralysis. The house 
of the employer was disinfected by a physician who presented 
his claim to the board of supervisors in the sum of $7.50. 
Pupils while sick with epidemic cerebro-spinal meningitis had 
been at school and in a church. Both the school house and 
church were fumigated by a physician and a claim filed with 
the board of supervisors for the sum of $5.00.”’ 


The question you propound is, ‘‘Is the county liable for either 
or both of these claims ?’’ 

In my opinion your question ought to be answered in the nega- 
tive. I do not think the county jg liable for either of these claims 
under the circumstances and facts set forth. I am assuming, of 
course, that the services in question were authorized in the proper 
way. I think as between the owner of the house where the servant 
girl stayed and made her home and the public it was the duty of 
such owner to fumigate his premises. 

In the case of the fumigation of the church and school house I 
do not think the statute contemplates that the expenses thereof 
are to be paid by the public. 

Respectfully yours, 
N. J. Les, 
Special Counsel. 


ATTORNEY GENERAL’S OPINIONS 95 


SpEcIAL ASSESSMENTS.—Where special assessments are made pay- 
able in installments they may be paid in advance of maturity 
with interest to date of payment. 

F. D. Hamitton, Treasurer, December 11, 1911. 

Webster City, Iowa. 
DEAR Sir: Yours of the 8th inst. addressed to the attorney 
general has been referred to me for reply. 


The question, as stated by you, is as follows: 


‘IT would like you to give me an opinion in connection with 
section 825 of the code of Iowa in regard to paving and sewer 
assessments on property, where waivers have been signed and 
the tax has been spread over a period of seven years and the 
interest figured accordingly. Now if the owner sells this 
property and wishes to pay off the whole of the assessment, 
must he pay the interest on same for seven years or can he 
settle legally by paying the interest to date?”’ 


Section 828 of the code provides: 


‘“‘The owner of any property against which a street im- 
provement or sewer assessment has been levied shall have the 
right to pay the same, or the unpaid installments thereof, with 
all interest, as the case may be, up to the tume of said payment, 
with any penalties and the cost of any proceeding for the sale 
of the property for such special assessments or installments.”’ 

Hence, I am of the opinion that a party desiring to pay unpaid 
installments would not be required to pay interest until the end 
of the seven years’ period, nor until the end of the period on which 
the assessment is to mature, but that he may lawfully pay the same 
at any time by paying interest to the date of payment. 


Yours truly, 
C. A. RosBIns, 


Assistant Attorney General. 


JURORS—F'EES oFr.—Persons summoned before a justice of the 
peace as jurors who are not used as such are not entitled to 
compensation. 

O. W. WitHam, County Attorney, December 16, 1911. 

Greenfield, Iowa. 
Dear Sir: Yours of the 15th inst. addressed to the attorney 
general has, on account of his absence, been referred to me for 
reply. 


96 ATTORNEY GENERAL’S OPINIONS 


Your question, briefly stated, is, whether or not persons who do 
not sit in the trial before a justice of the peace, but who are called 
there as persons from whom to select the jury, are entitled to 
compensation for one day as jurors. 


The present law fixing the compensation of jurymen, both in 
district and in justice court, is found in chapter 23 of the acts of 
the thirty-third general assembly, and provides as follows: 


‘‘Jurors shall receive the following fees: For each day’s 
service or attendance in courts of record including jurors sum- 
moned on special venire, two dollars and fifty cents ($2.50), 
and for each mile traveled from his residence to the place of 
trial, ten cents; 


‘*For each day’s service before a justice of the peace, one 
dollar. 


‘‘No mileage shall be allowed talesmen or jurors before 
justices. ”’ 


As I understand it, this section has been quite generally, if not 
universally, construed to allow jury fees only to those who serve 
as jurymen in the justice court, and I think this is the true mean- 
ing of the law, for you will notice that in district court the juror 
is entitled, by the words of the statute, to his compensation for 
service or attendance, and if it had been the intention of the legis- 
lature to allow for attendance in the justice court as well as for 
service, the word ‘‘attendance’’ would have appeared following 
the word ‘‘service’’ in the clause fixing the compensation for jus- 
tice court, and the fact that the word ‘‘attendance’’ is omitted 
clearly indicates that no compensation was intended to be allowed 
for attendance merely. 


While, as you suggest, it may be that they should receive com- 
pensation, yet as none is provided for, it could not be allowed until 
the law is changed in such a way as to authorize its allowance. 
There are many official acts for which no compensation is provided. 

Yours very truly, 
C. A. RoBBINS, 


Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 97 


TAXATION—EXEMPTIONS.—Where the upper story of a building 
is used for lodge purposes or other purposes rendering it 
exempt it may be exempted even though the lower story be 
taxed. 

Power & Power, Attorneys, December 18, 1911. 

Burlington, Iowa. 

GENTLEMEN: Yours of the 14th instant addressed to the attor- 
ney general has been, on account of his absence, referred to me 
for reply. . 

You ask for a copy of an opinion thought to have been rendered 
by this department to the effect that that portion of a building 
used exclusively for lodge purposes was not subject to taxation. 
I am unable to find that this question has been passed upon by 
this department, and while the question is one upon which the 
department would not be authorized to render an opinion, yet it 
occurs to the writer, in view of the decisions of our supreme court 
to the effect that there may be double ownership of buildings,— 
that is, that the title to the lower story may belong to one owner, 
while that of the upper story is in a different person, that the 
upper story so used exclusively for benevolent purposes might 
properly be exempt from taxation, under subdivision 2 of section 
1304 of the code, as amended. 

Yours very truly, 
C. A. Rossing, 
Assistant Attorney General. 


BANKS—BANK STOCK—TAXATION oOF.—The only deduction al- 
lowed in arriving at the value of bank stock is the amount of 
the bank’s capital actually invested in real estate. 


T. M. Earuy, County Auditor, December 18, 1911. 
Allison, Iowa. 


Dear Sir: Yours of December 11th addressed to the attorney 
general has been referred to me for reply. Your question as stated 
by you is as follows: 


‘‘A number of banks in this county claim certain and num- 
erous exemptions from their capital invested in their business 
beyond their real estate and the 20 per cent. Please let me 


hear from you at once in regard to the matter.’’ 
i 


98 ATTORNEY GENERAL’S OPINIONS 


The only deduction provided for under the new law is found 
in the latter part of section 4, chapter 63, acts of the thirty-fourth 
general assembly, which reads as follows: 


‘Tn arriving at the total value of the shares of stock of such 
corporations, the amount of their capital actually invested in 
real estate owned by them * * * * ghall be deducted 
from the real value of such shares, and such real estate shall 
be assessed as other real estate.’’ 


They are not entitled to any reduction of 20 per cent as men- 
tioned by you, but it is provided in the last part of section 5 of 
the- chapter above referred to, ‘‘that such shares and moneyed 
capital shall be assessed and taxed upon the taxable value of 20 
per cent of the actual value thereof,’’ and as other property is 
taxed at 25 per cent of its actual value, this amounts to the same 
thing in effect as a reduction of 20 per cent. 

Yours very truly, 
C. A. Rossing, 
Assistant Attorney General. 


Ciry AND CouNnTY WaARRANTS—ORDER OF PAYMENT.—City and 
county warrants should be registered and paid in the order of 
their presentation. 

December 19, 1911. 

W.S. Norr CoMpany, A. 

Minneapolis, Minn. 
GENTLEMEN: Your letter of the 2d mst. addressed to the attor- 
ney general has been referred to me for reply. Your inquiries are 
as follows: 


‘“We are engaged in selling fire department apparatus and 
supplies to cities and villages throughout the state, as settle- 
ment for which we are frequently given warrants, which when 
duly registered by the treasurer draw interest at the legal 
rate until paid. 

‘““We are also having warrants given us bearing a specific 
due date, with the rate of interest inserted in the body of the 
warrant, and the quqestion which we wish to have settled at 
this time is: Is it necessary to have these warrants registered 
by the treasurer ?’’ 


ATTORNEY GENERAL’S OPINIONS 99 


Subdivision 4 of section 442 of our code provides that the board 
of supervisors shall keep, among other books, ‘‘a book to be known 
as the warrant book in which shall be entered in the order of its 
issuance the number, date, amount and name of drawee of each 
warrant drawn on the treasurer and the number of warrants.’’ 

Code supplement section 483 provides: ‘‘When a warrant drawn 
by the auditor on the treasurer is presented for payment and not 
paid for want of money, the treasurer shall endorse thereon a note 
of that fact and the date of presentation and sign it, and thence- 
forth it shall draw interest at the rate of five per cent. He shall 
keep a record of the number and amount of warrants presented 
and endorsed for non-payment, which shall be paid in the order 


of such presentation. ’’ 
Yours very truly, 


C. A. RosBins, 
Assistant Attorney General. 


AUTOMOBILES—REGISTRATION Or.—Dealers in automobiles not used 
upon the public highway have the option of having the same 
assessed as other vehicles under the general law or paying 
the annual registration fee on each machine purchased during 
the year. 


December 27, 1911, 
Mr. H. B. Groves, 
Sioux City, Lowa. 


DEAR Sir: Yours of the 21st instant addressed to the attorney 
general has been referred to me for reply. 

Your question, briefly stated, is whether or not, under the new 
automobile law, machines on hand with dealers on January first, 
the time of assessment, should be assessed in view of the fact 
that the machines may soon be sold to the original purchaser and 
he becomes liable for the tax, and so on, as often as the cars 
change hands. 

This law has been construed by this department in such a way 
as to give the dealer the option of listing such machines as he 
has on hands January first and having the same, assessed under 
the general law, or he may pay the annual registration fee on 
each of his machines and on each machine which he may pur- 
chase during the year, instead of paying the dealer’s license fee, 


100 ATTORNEY GENERAL’S OPINIONS 


and in the last mentioned case, where the dealer would sell to 
the purchaser a transfer could be made from the dealer to the 
purchaser upon payment of a transfer fee of $1.00, and the pur- 
chaser in such event would not be liable for the annual fee for 
that year; and this matter could be taken into account by the 
dealer in the sale of the machine; the purchaser being compelled 
to have a license before he could operate a machine would be 
as willing to pay the dealer for the license as he would the state, 
and thus the dealer would only be out the transfer fee of $1.00 
on each machine, assuming that he could collect from the pur- 
chaser the full amount of the licensé fee that the purchaser would 
otherwise be required to pay to the state. And if the dealer 
would cause each machine to be registered under a separate num- 
ber, he would have no occasion to have the dealer’s number or 
registration, and would not be liable for the license fee. 

The theory of the law is to collect one license fee for each year, 
and if the machine is sold a second or third time in a year, only 
one license fee is required in case the transfer fee of $1.00 is paid 
at the time of each transfer and the proper return made, as pro- 
vidded by section 10, chapter 72, acts of the thirty-fourth general 


assembly. 
Yours very truly, 


C. A. Rossins, 
Assistant Attorney General. 


County ATTORNEY—COMPENSATION OFr.—The county attorney is 
not entitled to a percentage on fines and foreclosures unless 
collected by him during his term of office. 

December 29, 1911. 

K. B. Stites, County Attorney, : 

Manchester, Iowa. . 

Dear Sir: Your letter of the 26th instant addressed to the 
attorney general has been referred to me for reply. 

The question upon which you say your county board desires 
an opinion, briefly stated, is, When a judgement imposing a fine 
is entered in a cause in which the county attorney appeared for 
the state, and such fine is not collected until the county attorney 
retires from office and is succeeded by a new county attorney who 
succeeds in collecting the fine, whether the county attorney dur- 


ATTORNEY GENERAL’S OPINIONS 101 


ing whose term the judgment was entered, or the county attorney 
who collects the fines, or either of them, are entitled to any ad- 
ditional compensation on account of the rendition of such judg- 
ment or the collection of the fine. 

Your question calls for a construction of the latter part of 
code supplement section 308, which reads as follows: 


‘*TIn addition to the salary above provided, he shall receive 
the fees as now allowed to attorneys for suits upon written 
instruments where judgment is obtained, for all fines col- 
lected where he appears for the state, but not otherwise, and 
school fund mortgages foreclosed, and his necessary and actual 
expenses incurred in attending upon his official duties at a 
place other than his residence and the county seat, which 
shall be audited and allowed by the board of supervisors of 
the county.’’ 

And especially the underscored portion of the language above 
quoted. 

The general provisions of our law with reference to what con- 
stitutes an appearance usually have reference to appearance on 
the part of defendant rather than on the part of plaintiff, but 
in this case, both the county attorney obtaining the judgment 
and the one collecting the fine acted as representatives of the 
state, and doubtless in whatever was done in connection with 
this case, they appeared for the state within the meaning of this 
section. However, I am inclined to the view that the language 
here made use of should be construed to refer to the appearance 
made for the state at the time the fine was collected. Appear- 
ance, when used to designate the act of any person with reference 
to an action pending, means to come into court as a party to the 
suit. The actual presence of the party is not required; he may 
appear by his attorney or his agent. 

Wagner vs. Kellogg, 52 N. W., 1017. 


There might be many fines collected, or rather, paid in by the 
defendants without any active participation on the part of the 
county attorney, and where such is the case, I am inclined to 
the view that the words, ‘‘but not otherwise’? would exclude him 
from the right to claim a percentage on a fine so collected or 
paid in, and that the percentage should only be allowed in cases 
where the collection is brought about by some act or proceeding 
in which the county attorney appears for the state after the rendi- 
tion of the judgment imposing the fine. 


102 ATTORNEY GENERAL’S OPINIONS 


This construction is doubtless the better one from the stand- 
point. of public policy, for the county attorney who. is. in office 
at the time the judgment imposing the fine is entered will know 
that unless he proceeds to collect the same while he’ is yet in 
office, he will not be entitled to any percentage on such fine; where, 
on the other hand, if the county attorney would not be entitled 
to any percentage on the collection of fines imposed during the 
administration of his predecessor, there would be no inducement 
for him to be active in the matter of collecting such fines. 

The, question is one that is not entirely free from: doubt. and is 
one that probably should be determined by the courts. 


Yours very truly, 
C. A. RoBBins, 
Assistant Attorney General. 


HicHways—How EstasiuisHEeD.—Ten years’ travel of a road is suf- 
ficient to establish same as a public highway whether lawfully 
laid out or not: 

January 2, 1912. 

Mr. CHARLES HUNTSBERGER, 

West Union, Iowa. 

DeaR Sir: Yours of the 28th ult. addressed to the attorney 
general has been referred to me for reply. 

It is an indictable offense for any person to obstruct the publie 
highway by the erection of a fence therein, under code section 4807, 
and any person discommoded by the obstruction may lawfully 
remove the same from the highway. 

Ten years’ travel of the road is sufficient to establish the same 
as a public highway, and a change of the location of the same can- 
not lawfully be made without the action of the board of super- 
visors thereon. 

It is the duty of the road supervisor, and not the county attor- 
ney, to remove this obstruction, under code section 1560. It might 
be the duty of the county attorney to prosecute an indictment 
against the party erecting the fence. 

Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


ATTORNEY GHNERAL’S OPINIONS 103 


ScHoot Bumping Bonps—InTERESt—How Pam.—The interest: on 
‘school ‘house bonds should be paid from the school building 
bond ‘fund ‘and no part of same should be paid from the con- 
tingent fund. 

January 2, 1912. 

Hon. A. M. DEYoE, Superintendent, 

Department of Public Instruction, 
State House. 


Dear Sir: Your letter of the 12th ult. addressed to the attorney 
general has been referred to me for reply. 
Your first question is: 


‘‘From what fund should the interest on the bonded in- 
debtedness be paid? Is it legal to pay any part or all of this 
interest from contingent fund?’’ 


Code supplement section 2768 provides: 


‘“The money collected by tax for the erection of school-houses 
and the payment of debts contracted therefor shall be called 
the school-house fund; that collected for the payment of school 
buildings bonds shall be ealled the school building bond fund; 
that for rent, fuel, repairs and other contingent expenses neces- 
sary for keeping the school in operation, the contingent fund; 
and that received for the payment of teachers, the teachers’ 
fund ;’’ 


Code supplement section 2813 provides: 


‘‘The board of each school corporation shall, at the same 
time and in the same manner as provided with reference to 
other taxes, fix the amount of tax necessary to be levied to 
pay any amount of principal or interest due or to become due 
during the next year in lawful bonded indebtedness which 
amount shall’ be certified to the board of supervisors as other 
taxes, and levied by them on the property therein as other 
school taxes are levied, but such tax shall not exceed five mills 
upon the dollar of the assessed valuation of such property for 
money borrowed for improvements. ’’ 


Code supplement section 2783 provides: 


**It may ‘provide and pay out of the contingent fund to 
insure school property such sum as may be necessary, and may 
purchase dictionaries, library books, including books for the 


104 s ATTORNEY GENERAL’S OPINIONS 


purpose of teaching vocal music, maps, charts and apparatus 
for the use of the school thereof to an amount not exceeding 
twenty-five dollars in any one year for each schoolroom under 
its charge ;”’ 


From an examination of these sections, I am of the opinion that 
the interest on the bonded indebtedness should be paid from the 
school building bond fund, and that no part of the same could 
legally be paid from the contingent fund. 


Your second auestion is as follows: 


‘“Must the board have authority from the electors before 
they can levy sufficient funds to pay interest on the bonded 
indebtedness? If the electors for any reason fail to give such 
authority, how should the board proceed ?’’ 


Code supplement section 2813, which is above set. out, as it ap- 
peared in the Code of 1897, contained the following additional 
language: 

‘for any independent city or town district of any money bor- 
rowed for improvements after a vote thereof authorizing the 
same.”’ 

And while I am of the opinion that this language only.referred 
to the lawful bonded indebtedness and did not contemplate a vote 
authorizing the payment of interest, yet since this language is 
eliminated from the section, there is in my opinion no room for the 
contention that a tax for the payment of interest cannot be levied 
without a vote of the district authorizing the same. 

Your third question is as follows: 


‘‘From which fund should the salary of the city superin- 
tendent and the supervisors, such as music, drawing, primary, 
kindergarten, etc., be paid? Can any part of this salary be 
paid from the contingent fund?’’ | 

I am of the opinion that all salaries, such as are referred to in 
this question, should be paid from teachers’ fund. By what- 
ever name the instructor may be known, they are recognized under 
the law as teachers, within the meaning of code supplement section 
2768 above set out. At any rate, none of these matters could law- 
fully be paid from the contingent fund, for the purposes for which 
it may be expended are enumerated in the sections above quoted,— 
2768 and 2783, which do not include the payment of teachers or 
other instructors. 


ATTORNEY GENERAL’S OPINIONS 105 


Your fourth question is: 


‘“In ease contracts have been made for the erection of school 
houses or purchasing sites in excess of the money available in 
the school-house fund, can the board legally issue warrants on 
said fund to meet such obligations?’’ 


In addition to the language already quoted from code supple- 
ment section 2768, the section further provides: 


‘Whenever an order cannot be paid in full out of the fund 
upon which it is drawn, partial payment may be made. All 
school orders shall draw lawful interest after being presented 
to the treasurer and by him endorsed as not paid for want of 
funds.’’ 


These orders undoubtedly refer to the warrants authorized to 
be issued by the president and secretary under the provisions of 
code supplement section 2762, which provides as follows: 


‘“He shall countersign all warrants and drafts upon the 
county treasurer drawn or signed by the president; draw each 
order on the treasurer, specify the fund on which it is drawn, 
and the use for which the money is appropriated.’’ 


If this be true, the law would seem to contemplate that warrants 
might be issued, even though there were not at the time any funds 


available for their payment. 
GEORGE COSSON, 


Attorney General. 


BAaNKS—Taxes AGAINST SHAREHOLDER May BE Paip BY BANK.— 
The taxes imposed upon a share of stock may be paid by the 
bank for the stockholder and deducted from his dividends on 
the stock under code sections 1322 and 1325. 


F aa January 7, 1912. 
Mr. A. W. Crossan, Cashier, 
} Spirit Lake, Iowa. 

Dear Sir: Your favor of the 5th instant addressed to the at- 
torney general inquiring if a national bank is authorized to pay 
the taxes on the shares of stock of its stockholders and deduct the 
same from the dividends declared on such stock, was duly received 
and the attorney general has directed me to make reply thereto. 


106 ATTORNEY GENERAL’S OPINIONS 


This department is not authorized by law to render an official 
opinion in such a ease but in an unofficial way I call your attention 
to sections 1322 and 1325 of the 1897 code of Iowa which seem 
to answer your question in the affirmative without doubt. 

Yours very truly, 
N. J. Les, 
ue | Special’ Counsel. 


County ATTORNEY—DvutiEs or.—It is the duty of the county 
attorney to prosecute suits commenced for the collection of 
delinquent taxes without compensation other than the salary 
provided by law. 

JoHN S. Biow, County Auditor, January 9, 1912. 

Spirit Lake, Iowa. 

Dear-Sir: Your letter of the 5th instant addressed to the at- 
torney general has been referred to me for reply. 

Your questions, briefly stated, are, First, whether or not it is 
the duty of the county attorney to prosecute suits for the collec- 
tion of delinquent taxes, without compensation other than his 
salary, and, Second, whether it is his duty to prosecute suits to 
collect from relatives liable for the care of inmates in the insane 
hospital where the county is entitled to recover,—without addi- 
tional compensation other than his salary. 

Chapter 17 of the acts of the thirty-third general assembly pre- 
scribes the duties of the county attorney with more particularity 
than they had previously been prescribed, all of which will more 
fully appear by reference to sections 2, 5 and 6 in said chapter, 
which are as follows: : 


‘2. To appear for state and county. To appear for the 
state and county in all cases and proceedings: in the courts of 
his county, to which the state or county is a party, and in the 
supreme court in all cases in which the county is a party. 

‘5. To enforce forfetted bonds, ete. To. enforce; all for- 
feited bonds and recognizances, and to prosecute all proceed- 
ings necessary for the recovery of debts, revenues, moneys, 
fines, penalties and forfeitures accruing to the state or- his 
county, or to any school district or road’ district in his county; 
also to prosecute all suits in his county against public service 

- eorporations which are brought in the name of the state of 
Towa. ; 


ATTORNEY GENERAL’S OPINIONS 107 


‘6, To appear for county officers. To commence and prose- 
cute all actions and proceedings brought by any county officer 
in his official capacity.’’ 


On March 38, 1905, former Attorney General Mullan rendered 
an opinion to the effect that a resolution of the board of super- 
visors allowing to the county attorney an additional compensation 
of one thousand dollars for services performed as the attorney of 
the board of supervisors of the county, was illegal and void, and 
that whatever money was paid under such resolution was illegally 
taken from the county treasury and paid to the person receiving 
the same; which opinion was based on the decision of our supreme 
eourt in the case of Heath vs. Albrook, 123 Iowa, 559. 

Our supreme court has frequently held that no contract can be 
made, looking to the allowance or payment to a public officer of 
any other or greater compensation than that fixed by law. 


Massie vs. Harrison County, 129 Iowa, at 280. 


The only ease which I have been able to find in our court where 
additional compensation was allowed, is in the case of Bevington 
vs. Woodbury County, where the county attorney was allowed extra 
compensation for following and prosecuting in another county a 
state case which was removed from his own county by change of 
venue under an agreement with the board of supervisors of his 
own county to so prosecute said case, and there the supreme court 
based the decision upon the ground that it was no part of his 
official duty to prosecute the case in any county except his own 
county. 107 Iowa, 424. 

From these opinions it would seem to be clear that it is the duty 
of the county attorney to prosecute whatever suits may be neces- 
sary to collect delinquent taxes, or to collect the other matters 
mentioned by you in your letter without compensation other than 
that already provided for by the law. 


Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


108 ATTORNEY GENERAL’S OPINIONS 


ASSESSORS—COMPENSATION OF—How Fixep.—The compensation of 
an assessor should be fixed by the hour or by the day and not 
by the roll. 3 
Mr. C. F. Houck, | January 11, 1912. 
Allerton, Iowa. 


Dear Sir: Yours of the 8th instant addressed to the attorney 
general has been referred to me for reply. 

Your question is, whether the compensation of assessors should 
be fixed by the board of supervisors by the roll or by the hour. 

Chapter 41 of the acts of the thirty-third general assembly is the 
latest law on the subject, and provides: 


‘*Each township assessor shall receive in full for all serv- 
ices required of him by law, a sum to be paid out of the county 
treasury, and fixed annually by the board of supervisors at 
their January session; said compensation shall be for the suc- 
ceeding year and shall not exceed the sum of two and one- 
half dollars ($2.50) for each day of eight hours, which said 
board determines may necessarily be required in the discharge 
of the official duties of such assessors.’’ 


Hence, it follows that the compensation should be fixed by the 
hour or by the day, and not by the roll, for if fixed by the roll, 
there would be no way of determining whether or not in some 
eases the compensation allowed some assessors would exceed the 
limit of $2.50 per day for each day of eight hours. 

Yours very truly, 


C. A. RoBBIns, 
Assistant Attorney General. 


Deputy SHERIFF—County Batuirr.—A deputy sheriff cannot act 
as county bailiff and draw additional compensation therefor. 


January 11, 1912. 
W. H. WEeHRMACHER, County Attorney, 
Waverly, Iowa. 

Dear Sir: Yours of the 6th instant addressed to the attorney 
general has been referred to me for reply. 

Your question is, ‘‘Can a deputy sheriff act as a court bailiff 
and draw the regular fees as bailiff in addition to his salary as 
such deputy sheriff ?’’ 


ATTORNEY GENERAL’S OPINIONS 109 


Upon examination I find that this department has heretofore 
had occasion to pass upon this question. On May 4, 1896, Attor- 
ney General Remley rendered an opinion to the county attorney of 
Calhoun county, in which he made use of the following language : 


‘‘My conclusion from the authorities is that the sheriff or 
his deputy must be in attendance in court all the time the court 
is in session. Second, that the sheriff cannot perform the 
duties of his office by bailiffs. Third, if the deputy sheriff, in- 
stead of his principal, attends upon the court he cannot re- 
cover compensation as bailiff.’’ 


T also call your attention to the case of State of Iowa vs. Welsh, 
109 Iowa, at page 24, where the supreme court, in passing upon 
the question, makes use of the following language: 


‘‘Without entering into details, it may be stated generally 
that the defendant could not properly draw compensation from 
the county for clerk’s services as bailiff, and also for fees 
earned by him when actually serving in that capacity. If, 
for any reason, he was required as deputy, in serving papers 
or process, during his attendance on court as bailiff, no claim 
for his work as such for the time so occupied should have 
been made.’’ 


Hence, it follows that your question should be answered in the 


negative. 
° Yours very truly, 


C. A. RoBsins, 
Assistant Attorney General. 


Fwetiry Bonps—Must Bre Approvep.—aA fidelity bond presented 
should be approved even though the approving officer is agent 
of the company, but such officer cannot require that the bond 
be signed by any specific surety company. 


January 12, 1912. 
A. T. Roppy & Co., 


Des Moines, Iowa. 


GENTLEMEN: Yours of the 10th inst. addressed to the attorney 
general has been referred to me for reply. 


110 ATTORNEY GENERAL’S OPINIONS 


Your question, briefly stated, is, whether or not a public officer 
who happened to be a stockholder in a fidelity insurance company, 
and hence entitled to a share in the profits of such company, can 
lawfully require bonds which are to be filed and approved in his 
office to be signed by such company as surety. 


Code section 360 provides: 


‘Whenever any person who now or hereafter may be re- 
quired or permitted to give a bond applies for the approval 
thereof, any officer or body who is now or shall hereafter be 
required to approve the sufficiency of such bond, shall accept 
and approve the same, whenever its conditions are guaranteed 
by a company or corporation duly organized or ineorporated 
under the laws of this state, or authorized to do business there- 
in, and to guarantee the fidelity of persons holding positions 
of public or private trust.’’ 


Henee, it follows that if such bond were presented to the officer 
even though he happened to be a stockholder in the company sign- 
ing the bond as surety, nevertheless, it would be his duty, under 
this law, to approve the bond. 

Of course it goes without saying that no public official could 
require the bond to be signed by any specific surety company, as 
it would be his duty to approve the bond if signed by any such 
company; nor should any such public officer be offensively active 
in securing such business for the company of which he was a 
member. 


Yours truly, 
C. A. RoBBINs, 
__Assistant Attorney General. 


BANK STOCK—-ASSESSMENT OF.—No deduction on account of non- 
taxable bond held by a bank should be allowed in assessing 
shares of bank stock. 

January 138, 1912. 

SHERWOOD A. CLock, County Attorney, 

Hampton, Iowa. 
Dear Sir: Yours of the 11th instant addressed to the attorney 
general has been referred to me for reply. 


ATTORNEY GENERAL’S OPINIONS 111 


Your question. is: 


‘*Can banks deduct from the amount of their assets amounts 
invested in non-taxable bonds, such as municipal bonds, drain- 
age bonds, ete., in arriving at the amount of their taxes?”’ 


I note that you say that you are unable to obtain a copy of the 
decision rendered by our supreme court in a similar ease. I as- 
sume you refer to the case recently decided by our supreme court 
which was appealed from Polk county, but this question was not 
involved in that case. If the assessment was to be made against 
the bank, then there would be some reason for the contention that 
that portion of its capital invested in non-taxable securities, such 
as government bonds or bonds such as you refer to in your ques- 
tion, should be deducted, but the present law does not authorize 
the shares of stock to be assessed against the bank. 

In a case arising in New York, the state of New York assessed 
the shares of one Van Allen in the First National Bank of Albany. 
At: that time all the capital of the bank was invested in United 
States securities, and it was asserted that a tax upon the individual 
in respect to the shares that he held in the bank was, unless the 
holding in United States securities were deducted, a tax upon the 
securities themselves, but the court held otherwise, and that the 
tax on an individual in respect to his shares in a corporation, is 
not regarded as a tax upon the corporation itself. The right of 
such taxation rests upon the theory that shares in corporations are 
property entirely distinct and independent from the property of 
the corporation. 

See Van Allen vs. the Assessors, 3d Wallace, 573; 


Home. Savings Bank vs. Des Moines, 205 U. S. at 516 and 
517. 


It was for the purpose of meeting this very distinction that: 
section 4 of chapter 63, acts of the thirty-fourth general assembly, 
provided that shares of stock of national banks and _ state and 
savings. banks and loan and trust companies located in this state 
shall be assessed to the indwidual stockholders at the place where 
the bank or loan and trust company ts located. Hence, if: the as- 
sessment is to be made to the individual stockholder and not to the 
bank, the bank can make no deduction because there is no assess- 
ment against it on account of the stock. The individual can make 
no deduction because the bank, and not the individual, is the owner 
of the non-taxable securities. 


112 ATTORNEY GENERAL’S OPINIONS 


It is further provided in section 4, ‘‘To aid the assessor in fixing 
the value of such shares, the said corporation shall furnish him 
a verified statement of all the matter provided in section 1321 of 
the supplement to the code, 1907, which shall also show separately 
the amount of the capital stock, the surplus and undivided earn- 
ings, and the assessor from such statement shall fix the value of 
such stock, based upon the capital, surplus and undivided earnings. 
In arriving at the total value of the shares of stock of such cor- 
porations, the amount of their capital actually invested in real 
estate owned by them * * * * shall be deducted from the 
real value of such shares, and such real estate shall be assessed as 
other real estate, and the property of such corporation shall not 
be otherwise assessed.”’ 

As the real estate owned is the only deduction mentioned and 
enumerated, it necessarily follows that no other deductions were 
contemplated by the act. 

Hence, it follows that your interrogatory must be answered in 
the negative. 

Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


NON-RESIDENT OWNERS OF BANK StocK—How ASSESSED.—Shares 
of bank stock are assessed at the place where the bank is lo- 
cated even though the shareholder resides outside the state. 


Mr. A. J. Norton, January 138, 1912. 
Traer, Iowa. 


DeEaR Sir: Your: letter of the 11th instant addressed to the 
attorney general has been referred to me for reply, and the same 
presents two questions which, briefly stated, are: 


‘‘Ist. Should shares of stock in corporations outside the 
state, such as mining. stock, stock in a lumber company, or a 
land company, be assessed to the parties owning such stock 
at their place of residence in this state, or at the place of 
business of the company outside the state? 


‘*2nd. Whether or not a person residing in this state and 
owning shares of stock in banks in other states should be as- 
sessed on such shares at his place of residence in this state or 
at the place where the bank in which he owns the stock is 
located.’’ 


ATTORNEY GENERAL’S OPINIONS 113 


With reference to your first question, will say that the certifi- 
cate or share of stock has been held by the courts to be property 
independent of the property held by the company which issues 
such share of stock, and that such certificate or share of stock is 
properly assessable to the owner thereof at the place of his resi- 
dence, even though the company may be required to pay a tax 
upon the property owned by it in another jurisdiction. 


Van Allen vs. The Assessors, 3rd Wallace, 573. 


Henee, it follows that all such stock owned by residents of your 
assessment district should be assessed to them in that district. 

With reference to your second question, will say that under 
the laws of the United States, shares of stock in national banks 
must be assessed to the owner thereof, not necessarily at the place 
of his residence, but at the place where the bank is located. It 
therefore follows that any person residing in your district and 
owning a share of stock in a national bank outside of your district, 
even though within the state, should not be assessed by you. On 
the other hand, any resident of your district owning shares of 
stock in any bank other than a national bank, even though such 
bank is located outside the state, should be assessed with such stock 
in your district. The reason for this difference is, that the cer- 
tificate of stock as heretofore stated is property, and the state 
where the owner resides and has such certificate has the power to 
tax it, except as I have stated that this right does not exist with 
reference to national bank stock except at the place where the 
bank is located. | 

By section 4 of chapter 63 of the acts of the thirty-fourth gen- 
eral assembly, shares of stock in state banks, savings banks and 
loan and trust companies located in this state are to be assessed 
to the individual stockholder at the place where the bank or loan 
and trust company is located, instead of at the place of residence 
of the stockholder, as might be inferred from the latter part of 
my previous letter. Our supreme court has also decided that the 
shares of. stock of other Jowa corporations should be taxed to the 
stockholder at the principal place of business of the corporation, 
under code section 1323. 


Layman vs. Iowa Telephone Co., 123 Iowa, 591. 


Yours very truly, 
C. A. Rossing, 
Assistant Attorney General. 


114; ATTORNEY GENERAL’S OPINIONS 


TAXATION—LIEN OF ON Stocks oF MERcHANDISE.—Method of col- 
lection of taxes not yet due but assessed against stock of mer- 
chandise which is about to be removed in bulk discussed. 

January 16, 1912. 

Mr. 8. C. Jotinson, 

) Knoxville, Iowa. 


Dear Sir: Yours of the 13th instant addressed to the attorney 
general has been referred to me for reply. 

Your question, briefly stated, is, whether or not there is any 
remedy whereby a stock of merchandise can be held for the taxes 
for the year 1912 so as to prevent the stock being moved from 
the state before the taxes are paid, where the property has been 
assessed but no tax levy is made. 


Code supplement section 1400 provides: 


‘‘Taxes upon stocks of goods or merchandise shall be a lien 
thereon and shall continue a lien thereon when sold in bulk 
and may be collected from the owner, purchaser or vendee;’’ 


and our supreme court has said: 


‘Without this statute, a purchaser of such stock of goods 
would take title free from any claim on account of taxes. 
The statute makes taxes levied upon stocks of merchandise a 
- tien thereon and provides that they may be collected from 
~ anyone in whose hands the goods may be found, so long as 
they remain in bulk. This does not mean that these taxes be- 
come a personal charge against anyone save the owner at the 
time the goods were assessed. It simply gives an additional 
remedy and a right to follow the goods and to distrain them 
for the taxes assessed, so long as they remain in bulk.’” 


J Mercantile Co. vs. Blair, 123 Iowa, at 294. 


-In Larson. vs. Hamilton. Co., 123 Towa, 485, it was held that-this 
statute creates a lien for taxes on the stock of goods, and that such 
lien: attaches at. the time of the tax levy, but that a sale. of the 
stock between the date of the assessment and the date of the levy 
will not defeat the lien, but that neither the purchaser of the goods 
nor his other property become liable for such tax. 


Our court has further said: 


» .““The tax payer’s duty to pay does not arise until after 
the first Monday in January following the levy, and we think 


ATTORNEY GENERAL’S OPINIONS 196 


it can hardly be said that a personal property tax is due until 
the obligation to pay has arisen. It must be borne in mind 
that the question is one of lien. 


‘If the opportunity of the tax payer to pay is entitled to 
controlling consideration, then the lien should not be held to 
attach until after the first Monday in January, for it is only 
after that date that there is any specific obligation on the part 
of the tax payer to pay or the public officer to collect.’’ 


Read vs. Doty, 126 N. W., at 152. 


In the case of Crawford County vs. Laub, 110 Iowa, 355, it was 
held that the statute which made the mulct tax collectible as or- 
dinary taxes by tax sale was an adequate and exclusive remedy, 
and that a suit in equity to establish the lien could not be main- 
tained. 

In the case of Plymouth County vs. Moore, 114 Iowa, 700, it 
was held that ‘‘where a tax was levied on a stock of merchandise 
on September 9th, and that the section of the code hereinbefore 
quoted became effective in October thereafter, that the lien pro- 
vided by this section attached on the date that the law became 
effective, and that inasmuch as the tax was a lien, that the stat- 
utory remedy for collection of taxes provided by code section 1406 
and which authorized distress and sale of all personal property 
not exempt from execution, the tax list being a sufficient warrant 
therefor, that such remedy was exclusive, and that an action to 
collect the tax as a debt would not lie.”’ 

But even in the face of these authorities, I am of the opinion 
that the officer whose duty it is to collect the tax might, on account 
of the very fact that the tax assessed but not yet levied is not a- 
lien, maintain an action in equity to enjoin the removal of the 
property from the state for the purpose of protecting the right 
of the state to levy and collect the tax, on the same theory that the 
holder of a chattel mortgage may enjoin the mortgagor from re- 
moving the property out of the state, even though the debt secured 
by the mortgage is not yet due. And likewise, a landlord may 
enjoin the tenant from disposing of property upon which his land- 
lord’s lien is attached before the debt is due, but not afterward, 
for then his remedy by attachment becomes ample. 

I have not had the time to amplify this latter proposition by 
the citation of authorities, but it seems to me that authorities might 
be found along this line. 

. Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


LEG Y ATTORNEY GENERAL’S OPINIONS 


MoNEYED CAPITAL—-BANK SToCK—-METHOopD OF TAXATION DISCUSSED. 


January 17, 1912. 
E. W. CHRISTOPHER, County Auditor, 
Decorah, Jowa. 

Dear Siz: Your letter of the 13th instant addressed to the at- 
torney general has been referred to me for reply. 

You ask for an interpretation of the term ‘‘moneyed capital,’’ 
as referred to in section 1310 of the code, as amended by chapter 
63 of the acts of the thirty-fourth general assembly, and further 
ask, ‘‘ Would all money invested in such a way as to come in com- 
petition with the business of national banks come under the head 
of ‘moneyed capital?’ ’’ 

This term ‘‘moneyed capital’’ as used in that section has been 
frequently interpreted by the various courts of the country, and 
the best definition I have been able to find of the term is found 
in the opinion of the supreme court in the case of Mercantile Bank 
vs. New York, 121 U.S., at 157, where it is said: 


‘“The terms of the act of congress, therefore, include shares 
of stock or other interests owned by individuals in all enter- 
prises in which the capital employed in carrying on its busi- 
ness is money, where tie object of the business is the making 
of profits by. its use as money. The moneyed capital thus em- 
ployed is invested for that purpose in securities by way of 
loan, discount, or otherwise, which are from time to time, ac- 
cording to the rules of the business, reduced again to money 
and re-invested. It includes money in the hands of individuals 
employed in a similar way, invested in loans or in securities 
for the payment of money either as an investment of a per- 
manent character or temporarily with a view to sale or re- 
payment and re-investment.’’ 


In the same case, on page 161, the court says: 


‘“No one can suppose for a moment that savings banks come 
into any possible competition with national banks of the United 
States.’’ 


Some of the courts state the matter about as you have stated it 
in your question, that moneyed capital is any capital which comes 
in competition with the business of national banks, and while that 
is a true statement of the situation, yet under our statutes, state 
and savings banks are not taxed because their capital is moneyed 


ATTORNEY GENERAL’S OPINIONS 117 


eapital, within the meaning of this section necessarily, but because 
of the provision in section 4 of the chapter under consideration,— 
that the shares of stock in such institution shall be assessed to the 
individual stockholder. 
| Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


ParsonaceEsS—Not Exrempr From Taxation.—Property in order 
to be exempt from taxation as church property must be owned 
by the church and where the title is in the name of the minister 
of the church the exemption is not allowable. 


January 17, 1912. 
Mr. E. E. ILGENFRITz, 
721 Carroll Street, 
Boone, Iowa. 


Dear Sir: I am in receipt of your communication of the 15th 
instant requesting an opinion as to whether a parsonage owned 
by a minister or division superintendent is exempt from taxation 
under the Iowa statutes. 

I have given this matter careful consideration and I find that 
under paragraph 2 of section 1304, supplement to the code, 1907, 
the following classes of property are not to be taxed: 


‘All grounds and buildings used for public libraries; 
* * * * and for literary, scientific, charitable, benevolent, , 
agricultural and religious institutions, and societies devoted 
solely to the appropriate objects of these institutions, not ex- 
ceeding one hundred and sixty acres in extent, and not leased 
or otherwise used with a view of pecuniary profit, * * *”’ 


Our supreme court has held in the case of Trustees of. Griswold 
College vs. State of Iowa, 46 Iowa, 275, and in the case of Cook 
vs. Hutchins, 46 Iowa, 706, that a parsonage owned by the church 
and used as a parsonage is exempt from taxation; but our supreme 
court in the case of Laurent vs. City of Muscatine, 59 Iowa, 404, 
held that in order that the exemption may apply, the use and 
ownership, either legal or equitable, must combine in the institu- 
tion, and hence under this decision the property in question would 
not be exempt from taxation for the reason that it is not actually 


118 ATTORNEY GENERAL’S OPINIONS 


owned by the church. As before stated, in order that the prop- 
erty may be exempt from taxation, it must be owned by a religious 
society and used for religious purposes. 
See also: 
In re Dille, 119 Iowa, 575; 
Nugent vs. Dillworth, 95 Towa, 49; 
37 Cyc., page 943. 


Yours very truly, 
GEORGE COSSsoN, 
Attorney General of Iowa. 


DELINQUENT TAXATION ON BANK StocK—How CoLLecTep.—Taxes 
levied against shares of stock in banks are required to be 
paid by the bank and the bank may charge it up against the 
_ dividends of the stockholders. 


January 20, 1912. 
R. L. FarnswortnH, Cashier, 


New Hartford, Iowa. 


DEAR Sir: Yours of the 18th instant addressed to the attorney 
general has been referred to me for reply. 


Your inquiry is with reference to the remedies available for 
the collection of delinquent tax on bank stock, and you especially 
inquire as to whether or not such tax is a hen upon the real estate 
of the owner of the bank stock the same as other personal prop- 
erty tax. 

Under section 1322 of the supplement to the code, 1907, as 
amended by section 4 of chapter 63, acts of the thirty-fourth gen- 
eral assembly, it is provided: 


‘Shares of stock of national and state and savings banks 
and loan and trust companies located in this state shall be 
assessed to the individual stockholder at the place where the 
bank or loan and trust company is located.”’ 


And while it is doubtless true, as suggested by you, that this tax _ 
would be a len upon any real estate owned by the stockholder in 
the county where the bank is located, yet as the stock in a bank 
is frequently held by persons not having any land in that county, 


ATTORNEY GENERAL’S OPINIONS 119 


but having land in other counties where the tax would not, be a 


lien, it would seem that some better remedy for its.collection should 
exist. 

This remedy is found in code section 1325, which provides as 
follows: 


‘“‘The corporations described in the preceding sections shall 
be lable for the payment of the taxes assessed to the stock- 
holders of such corporations, and such tax shall be payable 


by the corporation in the same manner and under the same 


penalties as in case of taxes due from an individual. tax- 
payer, and may be collected in the same manner as other taxes, 
or by action in the name of the county. Such corporations 


may recover from each stockholder his proportion of the taxes. 


so paid, and shall have a len on his stock and. unpaid divi- 
dends therefor. If the unpaid dividends are not sufficient to 
pay such tax, the corporation may enforce such len. on the 
stock by public sale of the’same, to be made by the sheriff 
at the principal office of such corporation in this state, after 
giving the stockholders thirty days’ notice of the amount of 
such tax and the time and place of sale, such notices to be 
by registered letter addressed to the stockholder at his postoffice 
address, as the same appears upon the books of the company, 
or is known by its seeretary.”’ 


Hence, it follows that the bank, by virtue. of this section, can 
be compelled to pay the tax by an action in court, if necessary, 
and the bank should see to it that the tax does not become de- 


linquent, and in the particular case which you cite, I think the. 


purchaser of the bank stock is bound to know this provision of 
the law,. and hence, purchases the stock subject to any unpaid 
tax, and the bank, would still have the right to charge the tax 
to the share of stock, even though the ownership of the share of 
stock has changed hands. os ; 
- Yours truly; 
C. A. Rospprns, 
Assistant Attorney General. 


— 


120 ATTORNEY GENERAL’S OPINIONS 


MANUFACTURING COMPANIES—SHARES OF STOCK IN—How ASSESSED. 
Mr. G. H. Orcutt, January 30, 1912. 
Monroe, Iowa. 


DeEAr Sir: Yours of yesterday addressed to the attorney gen- 
eral has been referred to me for reply. 

Your question, briefly stated, calls for the proper method of 
taxation of shares of stock in the Quaker Oats Company,—whether 
on the five mill basis or on 20 per cent of its actual value; also for 
the proper basis of taxation of money in the bank on time deposit 
and in bank subject to check, where these items are held by a 
farmer living on his own farm. | 

If the Quaker Oats Company is an Iowa corporation it would 
in all probability be a manufacturing corporation, and the cor- 
poration itself should be assessed with its property under section 
1319 of the code. And you will observe by the last few lines of 
this section that the owners of capital stock of a manufacturing 
corporation which has listed its property are exempt from assess- 
ment on such shares of stock. If on the other hand, the Quaker 
Oats Company is a foreign corporation, then shares of stock held 
by residents of your taxing district would be moneys and eredits 
and should be taxed on the five mill basis, even though the prop- 
erty of the company is taxed’in the state of its residence. 

See Judy vs. Beckwith, 114 N. W., 565. 

The money in bank on time deposit, as well as the checking ac- 
count, should be taxed on the five mill basis where, as you say, the 
same is held by a farmer, being one who is not engaged in the 
making of money by the use of his moneyed capital as money. 


Very truly, 
C. A. RoBBINs, 
Assistant Attorney General. 


ASSESSMENT OF Property oF Person ABout To LEAVE STaTE.— 
A person about to leave the state and having property in 
the state on January 1st should be assessed even though he 
may be liable for another tax in same year on same property 
in the state to which he moves. 

Mr. J. F. Moorman, January 30, 1912. 

Truro, Iowa. 


Dear Sir: Yours of yesterday addressed to the attorney gen- 
eral has been referred to me for reply. 


ATTORNEY GENERAL’S OPINIONS 121 


Your question is, ‘‘Has the assessor the lawful right to list all 
property in view of the fact that you are leaving the state for 
Nebraska, and whether or not, if the property is listed here, the 
Nebraska authorities are bound by the proceedings here?’’ 

Under our law it is not only the right, but the duty of the as- 
sessor to assess all property which was in this state on January 
Ist to the then owner thereof. I do not know what the laws of 
Nebraska are. It may be that you would be liable for a double 
tax on the property by moving to Nebraska. If their date for list- 
ing is after the time you arrive there, but in the same year, you 
would be liable for a double tax. 


Yours very truly, 
C. A. Roppins, 
Assistant Attorney General. 


BRICK AND TILE COMPANIES—How ASssEssEep—MorTor Car Com- 
PANIES—How ASSESSED. . 


| January 30, 1912. 
R. J. MULLEN, Assessor, 
Dougherty, Iowa. 


Dear Sir: Your letter of the 28th instant addressed to the at- 
torney general has been referred to me for reply. 

You eall attention to the fact that some of the stockholders in 
the Farmers’ Brick & Tile Company of Mason City and the Colby 
Motor Company refused to list their stock in these corporations 
until they are shown proof that they can be assessed for these 
stocks, and ask to be advised with reference to the matter. 

Our supreme court, in the appeal of Jowa Pipe & Tile Company, 
70 N. W., 115, has held that a brick and tile company is a manu- 
facturing corporation, and would hence be taxed under the pro- 
visions of section 1319 of the code, and the property of the cor- 
poration should be assessed instead of the shares of stock. You 
will notice the last lines of this section provide: 


‘“The owners of capital stock of manufacturing companies, 
as herein provided for, having listed their property as above 
directed, shall be exempt from assessment and taxation on 
such shares of capital stock.’’ 


422 ATTORNEY GENERAL’S OPINIONS 


-Ivdo not know enough about the Colby Motor Company to know 
whether or not it should be assessed in the same way, but if it as 
‘a manufacturing concern instead of ‘a selling concern, then the 
same rule ‘would apply with reference to it and its stockholders. 
On the other hand, if it is not a manufacturing concern and is a 
foreign corporation, the shares of stock must be assessed to ‘the 
imdividual owners thereof where they reside, and those residing in 
this state should be assessed with their shares of stock, even though 
the property of the corporation is assessed in the foreign state 
where ‘it 1s organized. : 


Judy vs. Beckwith, 114 N. W., 565. 


Yours truly, 
C. A. Rossins, 
Assistant Attorney General. 


Roap SUPERVISORS—TREES IN HicgHway.—The road supervisors 
may not destroy trees by the roadside which do not obstruct 
the travel. 


January 31, 1912. 
Mr. Gus Monin, | 
‘Woodward, Iowa. 


_ Dear Sir: Replying to your letter of the 21st instant to the 
attorney .general, will say, first, section 1556 of the code provides: 


‘“Phe road supervisor shall not cut down or mjure any tree 
‘growing by the ‘wayside which does not obstruct the road or 
which stands in front of any town lot, inclosure or cultivated 
field, or any ground reserved for any public use, and shall 
not enter upon any lands for the purpose of taking timber 
therefrom without first receiving permission from the owner.’’ 


Of course you are aware of the provisions with reference to the 
trimming of hedges, but I take it that this is not what you have 
in mind. 

Your second question is: ‘‘Have the county supervisors the 
right to use a township one mill road tax any place in the town- 
ship they wish to?’’ 


ATTORNEY GENHRAL’S OPINIONS 123 


Section 1 of chapter 97 of the acts of the thirty-third general 
assembly provides: 


‘‘That on written petition of a majority of the electors who 
are free holders of any township in any county, the board of 
supervisors may levy an additional mill in said township to 
be expended by said board of supervisors on roads in the town- 
ship. where the same is levied.’’ 


Hence, it follows that your question should be answered in the 
affirmative, provided, however, the board confines the work within 
the township for which the one mill tax is levied. 


Yours very truly, 
C. A. RosBIns, 
Assistant Attorney General. 


POLICEMEN’s PEeNsIoN Funp.—The tax for policemen’s. pension 
fund may be levied when the city has an organized police force 
but not otherwise. 


January 31, 1912. 
Frep G. Fisk, Marshal, 


Osage, Iowa. 


Dear Sir: Yours of the 29th instant addressed to the attorney 
general has: been referred to me for reply. 

Your question, briefly stated, is whether or not the policemen’s 
pension law applies to a city of the second class where there is only 
one policeman. 

The policemen’s pension law is found in chapter 62, of the acts 
of the thirty-third general assembly, and section 1 provides: 


‘In all cities and towns including cities organized under 
special charter, now or hereafter having an organized police 
department, there may be annually levied at the time of the 
levy of other taxes for city purposes a tax not exceeding one- 
half of a mill on the dollar for the purpose of creating a 
policemen’s pension fund.’’ 


I am inclined to believe that this law was only intended to apply 
in cases: where there is an organized police department. If you 
will examine section 668 of the supplement to the code, specifying 


124 ATTORNEY GENERAL’S OPINIONS 


the duties and powers of city and town councils, and especially 
subdivision 12 of that section, you will find that it provides: 


‘“They shall have power to establish a police force, and to 
organize the same under the general supervision of the mar- 
shal, and to provide one or more station houses.’’ 


Should your city comply with these provisions, then I think the 
tax provided for might be levied and you or any other disabled 
policeman might be entitled to the pension. 


Yours very truly, 
C. A. Ropsrns, 
Assistant Attorney General. 


BANKS—TAXATION OF—DEDUCTIONS.—No deductions should be 
made from the valuation of bank stock on account of the fact 
that the surplus or undivided earnings may be invested in 
gvovernment bonds. 


February 8, 1912. 
C. J. Casu, County Attorney, 


Anamosa, Iowa. 


DEAR Sir: Yours of the 6th instant addressed to the attorney 
general has been referred to me for reply. 
Your questions are: 


‘‘Ist. Can any deduction be made by reason of part of the 
surplus and undivided earnings being invested in government 
bonds? 

‘‘2d. Is there any deduction on account of real estate owned 
by the bank or by a company in which they hold stock except 
real estate ‘on or in which the bank or trust company is 
located’ ?’’ | 


Your first question should be answered in the negative. The 
chapter to which you refer requires the assessment to be made 
against the individual stockholders and not against the bank. It 
is clear, therefore, that the bank is not entitled to make any deduc- 
tion for the reason that there is no assessment against it. The in- 
dividual stockholder is not entitled to make any deduction because 
the bank, and not the stockholder, is the owner of the government 
securities. 


ATTORNEY GENERAL’S OPINIONS 125 


Your second question should be answered in the affirmative, mod- 
ified by the proposition that the deduction to be made is not the 
value of the real estate, but ‘‘the amount of their capital actually 
invested in real estate owned by them.’’ This deduction is not to 
be confined to the building in which the bank or loan and trust 
company is located, but where the banks own such a building, a 
deduction is to be made on account thereof. 


Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


VOTERS—QUALIFICATIONS OF.—A citizen of the United States of 
the age of twenty-one years, a resident of the state six months 
and of the county sixty days, is a qualified elector. In city 
elections he must also be a resident of the precinct ten days. 
Women may vote at elections where certain specified questions 
are involved. 


February 12, 1912. 
Mr. GEorcE H. HAYNeEs, 
Worcester, Mass. 


DeEsrR Siz: Replying to your letter of the 30th ult. with refer- 
ence to the qualifications required of voters by the laws of this 
state, will say, first, that by the constitution of Iowa, section 1, 
article II, it is provided: 


‘‘Every male citizen of the United States of the age of 
twenty-one years who shall have been a resident of this state 
six months next preceding the election, and of the county in 
which he claims his vote, sixty days, shall be entitled to vote 
at all elections which are now or hereafter may be authorized 
by law.’’ 


By section 642 of the code it is provided, in addition to the 
foregoing, that persons voting at city or town elections must have 
been a resident of the town and of the precinct in which he desires 
to vote ten days prior to the election. 

By code supplement section 1076, in cities having a population 
of 3,500 or more, registration is required. No educational tax, 
property tests or other qualifications are required. 


126 ATTORNEY GENERAL’S OPINIONS 


By code section 2747, it is provided: ‘‘In any election here- 
after held in any school corporation for the purpose of issuing 
bonds for school purposes or for increasing the tax levy, the right 
of any citizen to vote shall not be denied or abridged on account 
of sex, and women may vote at such elections the same as men, 
under the same restrictions and qualifications, so far as applicable.’”’ 
By section 1131, same provision is applied to city and town elec- | 
tions for similar purposes. 


By section 5, article II of the Iowa constitution, it is provided: 


‘‘No idiot or insane person or person convicted of any in- 
famous crime shall be entitled to the privilege of an elector.’’ 


Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


Pott TAx—Exemptions.—Officers and soldiers of the guard are 
exempt from poll tax during their terms of service. 


SoupiERS’ Exemprion.—The soldiers’ exemption provided for by 
chapter 62, acts of the,thirty-fourth general assembly, is avail- 
able only to Union soldiers or sailors of the Mexican war and 
the war of the rebellion and is not available to the soldiers of 
the Spanish-American war. 


February. 12, 1912. 
Mr. WALTER L. Coox, 


R. R. No. 2, Rolfe, Iowa. 
DEAR Sir: Yours of the 9th instant addressed to the attorney 
general has been referred to me for reply. 
Your questions are: 


‘‘Hirst. Whether an ex-soldier of the Spanish-American 
war is exempt from poll tax. 

‘‘Second. Whether or not such soldier is entitled to the 
$1,200 exemption from taxation.’’ 


Code section 2209 provides: ‘‘Every officer and soldier of the 
guard shall be exempt from jury duty and poll tax during his 
term of service.’’ 

As this exemption applies only during the term of service, it 
follows that your first question should be answered in the negative. 


ATTORNEY GENERAL’S OPINIONS 127 


With reference to your second question, will say that chapter 
62, acts of the thirty-fourth general assembly, provides: ‘‘The 
property not to exceed $1,200 in actual value, of any honorably 
discharged Union soldier or sailor of the Mexican war or of the 
war of the rebellion, shall not be taxed.’’ 

From this it is clear that soldiers serving in other wars ‘were 
not intended to be within the provisions of this act, and hence, 
a soldier of the Spanish-American war or of any other war other 
than the Mexican war or the war of the rebellion would not be 
entitled to this exemption. 

Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


BANK STOCK—VALUATION AT WuicH Assessep.—Under chapter 
63, acts of the thirty-fourth general assembly, bank stock 
and loan and trust company stock should be assessed at 20% 
of its actual value. 


February 12, 1912. 
J. H. Curisty, Assessor, 


Tabor, Lowa. 


Dear Sir: Replying to yours of the 7th instant addressed .to 
the attorney general, will say that code section 1322, as amended 
by chapter 63, acts of the thirty-fourth general assembly, requires 
that bank stock and loan and trust company stock and moneyed 
capital shall be assessed and taxed upon the taxable value of 20% 
of the actual value thereof. However, in practice many assessors 
assess this property at 80% at the same time that they assess the 
other property at 100%, and then divide all by four, which would 
result in assessing the bank stock at 20% and the other property 
at 25%. It is not material which way it is done, so long as it clearly 
appears that the assessment is made on a 20% basis. 

The holders of shares of stock are not entitled to deduct their 
indebtedness therefrom in order to reduce their assessment. 


Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


128 ATTORNEY GENERAL’S OPINIONS 


TAXATION—EXEMPTION OF By Ciry Counciu.—Neither the city 
council nor the board of supervisors have authority to exempt 
from taxation for city or county purposes brewery property. 


February 16, 1912. 
Mr. M. P. WIitson, 


819 4th Ave., 
Clinton, Iowa. 


DEAR Sir: Yours of the 9th instant addressed to the attorney 
general has been referred to me for reply. 

You call attention to the fact that the city council and the county 
board of supervisors have by some order attempted to exempt from 
taxation for city and county purposes the Clinton Brewery Com- 
pany, and you ask what the duties of the county treasurer are in 
connection. with such a case, and whether or not it is up to him 
to take action to collect the lawful taxes for the current year, as 
well as for previous years. You also ask what action should or 
could a citizen take in the case. 

There is no authority in law for such an exemption being made, 
and that it would be the duty of the city council and the board of 
supervisors, aS well as the.county treasurer and the county attor- 
ney, to see to it that these taxes are collected; and it is doubtless 
true that the proper officers might be compelled by mandamus pro- 
ceedings to take the necessary steps to collect this tax. It is equally 
true that if the proper officers fail to collect this tax, their bonds- 
men would be liable for the damage sustained by reason thereof. 

There are various steps that might be taken by an interested 
citizen to bring about the collection of this tax. I would suggest, 
however, that the first step should be to serve a written notice on 
the city council, the members of the board of supervisors, the 
county treasurer and the county attorney, calling their attention to 
the illegality of the practice, and demanding that they proceed to | 
collect the tax. 


Yours truly, 


C. A. Ropsins, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 129 


_RESIDENTS.—One may retain his residence in the country while 
residing temporarily within a city. 


February 21, 1912. 
Mr. FRANK A. NIMOCKS, 


Ottumwa, Iowa. 


DEAR Sir: I am in receipt of your communication of the 2d in- 
stant in which you say that Mr. Hall was elected a member of the 
board of supervisors from Washington township, commencing his 
services on January 1, 1911, and has recently temporarily removed 
to Ottumwa owing to special reasons; that he retains his farm in 
Washington township on which his sons are working, and the ques- 
tion arises as to whether he may retain his residence in Washing- 
ton township although temporarily residing in the city of Ottumwa 
for the purpose of convenience. 

This undoubtedly may be done if he so desires. If he retains 
his legal residence at his old home in Washington township, he 
can continue to run for office from that township; this being true, 
of course there will be nothing to prevent Mr. Patterson from again 
being a candidate and being elected if he can receive the suffrage 
of the people from the city of Ottumwa. 


Yours very truly, 
GEORGE COSssoN, 
Attorney General of Iowa. 


PrmMArRY ELECTION NotTicE—PUBLICATION oF.—The primary elec- 
tion notice must be published in one, and not to exceed two 
newspapers of general circulation, and where there are only 
two papers and both are Republican, it may be published in 
both. 

. February 21, 1912. 

Gro. J. Cummines, County Auditor, 


Osage, Iowa. 


DEAR Sir: Your letter of the 19th instant addressed to the at- 
torney general has been referred to me for reply. 

You request an interpretation of that provision of section 1087- 
al2 of the supplement to the code, 1907, as amended, relating to 
the publication of notice of primary elections. You say that you 


9 


130 ATTORNEY GENERAL’S OPINIONS 


have no democratie paper in your county, but have two of the 
leading papers of the county designated as the official papers, both 
being republican in politics, and you inquire if such notice should 
be published in both papers or in one only. 

You will note from a reading of the statutory provision re- 
ferred to that such notice is to be published in not to exceed two 
newspapers of general circulation in the county. It is further 
provided that one of such newspapers shall represent the political 
party which cast the largest vote at the last preceding general 
election, and the other, if any, shall represent the political party 
which cast the next largest vote in the county at such general 
election. I construe this to mean that if there are newspapers 
representing the two political parties which cast the highest and 
next highest vote as aforesaid, and the notice is published in two 
newspapers, they must be in papers representing such political 
parties, and they cannot both be published in papers representing 
one of the parties casting the highest or next highest vote, but I 
do not understand that it is mandatory that the notice be published 
in more than one newspaper in any case. 

Answering your question then, I would say that it would be 
perfectly legal and proper to have the notice published in two 
republican papers, under the facts as you give them. In answer- 
ing the question as I do, T am assuming that the democratic party 
east the next highest vote in your county at the last preceding 
general election. 


Respectfully yours, 
N. J. Les, 


Special Counsel. 


Mitnace Tax—How ApporTioNeD.—The millage tax realized on 
moneys and credits is to be apportioned among the several 
funds in the same proportion that the tax realized from other — 
sources in the several funds bear to each other. 


February 21, 1912. 
Mr. Bert CopEr, 


Letts, Iowa. 


DEAR Str: Yours of the 19th instant addressed to the attorney 
general has been referred to me for reply. 

My understanding of section 1 of chapter 63, acts of the thirty- 
fourth general assembly, with reference to the apportionment of 


ATTORNEY GENERAL’S OPINIONS 131 


the 5 mill tax on moneys and credits, is, that the tax realized 
from this source is to be apportioned among the several funds in 
the same proportion that the tax realized from other sources, in 
the several funds, bear to each other. For instance, if the tax for 
the state fund was 1 mill, for the county fund 2 mills, and for the 
school or corporation fund 1 mill, then whatever tax was realized 
from the 5 mill levy on moneys and eredits would be divided in 
the same proportion,—that is, one-fourth to the state fund, one- 
half to the county fund, and the remaining one-fourth to the school 
or corporation fund. 
Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


UNIVERSITY PROPERTY—WHEN LIABLE FOR TAXATION.—Where a 
university property is conducted with a view to pecuniary 
profit it is not exempt from taxation. 


February 21, 1912. 
W. M. Bair, Mayor, 


University Park, Iowa. 


DEAR Sir: Yours of the 19th instant addressed to the attorney 
general has been referred to me for reply. : 

Your question, briefly stated, 1s, whether or not the property 
belonging to the Central Holiness University is lable for taxation. 

Our supreme court has held in the case entitled In re Dille, 119 
Iowa, 575, with reference to the property and grounds known as 
Highland Park College in this city, that ‘‘when such an institu- 
tion is used and maintained with a view to pecuniary profit, it is 
not exempt,’’ and I assume the same rule would apply to your 
university. Of course if no charges are made for tuition or other 
instruction, then the property would doubtless be exempt; other- 
wise not. 

Yours very truly, 
C. A. Ropsins, 


Assistant Attorney General. 


132 ATTORNEY GENERAL’S OPINIONS 


Surety Bonps—How Conpirionep.—While the law compels the 
approving officer to accept as surety a fidelity company it is 
nevertheless his duty to see to it that the bond is conditioned 


as required by law. : 
February 23, 1912. 


S. M. Bentuey, Clerk District Court, 
Waterloo, Iowa. . 


DEAR Sir: Yours of the 16th instant addressed to the attorney 
general has been referred to me for reply. 

Your question, briefly stated, is whether or not it is your duty, 
under code section 360, to approve bonds of local officers of a domes- 
tic local building and loan association when the bonds tendered 
are signed by a surety company which has complied with section 
359 of the code, but which bonds do not contain the conditions re- 
quired by code section 1183 and code supplement sections 1177-a 
snd 17rd. 

I am of the opinion that, while the statute makes it mandatory 
on the officer to approve the bond when tendered, the only ques- 
tion sought to be foreclosed was the responsibility of the surety 
company, and that, even in the face of this statute, it is not only 
the right, but the duty of the approving officer to see that the bond 
is conditioned as required by law. 


Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


TAXATION—-LAND ContTRACTS.—-A land contract whereby the owner 
is bound to sell and the purchaser bound to buy is taxable 
as moneys and credits. 


February 26, 1912. 
JAs. P. RecKNor, Township Trustee, 


R. F. D. No. 1; Prescott, Iowa. 


DeAR Sir: Yours of the 12th instant addressed to Governor 
Carroll has just been referred to this department for reply. 

Your question, briefly stated, is whether or not one who has 
executed a contract for the sale of land should be assessed and 
taxed on the deferred payments due on such contract. 

Where the contract binds the land owner to sell and also binds 
the purchaser to pay the deferred payments, then such deferred 


ATTORNEY GENERAL’S OPINIONS 133 


payments are moneys and credits and the seller of the land should 
be taxed accordingly. Cross vs. Snakenburg, 126 Iowa, 636. 
Where, however, the contract simply gives the purchaser an 
option on the land and binds the land owner to convey if the option 
is exercised, then the seller of the land is not lable to be taxed on 
the contract. Schoonover vs. Petcina, 126 Iowa, 261. 
It is the duty of the assessor rather than the township trustees 
to see that all such contracts are properly assessed. 
Yours truly, 
C. A. Ropsins, 
Assistant Attorney General. 


SHERIFF—COMPENSATION OF FOR BOARDING PRISONERS.—The sheriff 
is entitled for boarding prisoners to 1214 cents per meal, not 
exceeding three in twenty-four consecutive hours, and 1214 
cents for each night’s lodging. 

EK. F. Brown, County Attorney, February 26, 1912. 

Vinton, Iowa. 

‘Dear Sir: Mr. Cosson will reply to that portion of your letter 
of the 9th instant covering the report on prisons, but he has re- 
ferred to me for reply that portion of your letter with reference 
to the sheriff’s compensation for lodging prisoners, and as to 
whether or not the item of 25 cents for each commitment and dis- 
charge of prisoners should be deducted from his salary. 

The compensation of the sheriff for boarding prisoners is now 
fixed by chapter 36 of the acts of the thirty-third general assembly. 


‘‘For boarding prisoners, a compensation of twelve and a 
half cents for each meal, and not to exceed three meals in 
twenty-four consecutive hours, and for each night’s lodging, 
the sum of twelve and a half cents.’’ 

The fact that this compensation is thus fixed excludes the idea 
that anything additional might be allowed. 

I am inclined to think that the sheriff should account for the fees 
received for commitments and discharge of prisoners. There is no 
greater reason for these fees being retained in addition to the salary 
than any other fees mentioned in code supplement section 511, 
and where the sheriff is put on a salary basis, the theory is that 


he should account for all fees. 
Yours truly, 


C. A. Ropsins, 
Assistant Attorney General. 


134 ATTORNEY GENERAL'S OPINIONS 


NOMINATION Paprers.—Where a senatorial district is composed of 
two counties, the signatures required may all come from one 
county, but the percentage should be figured on the total vote 
of the party in both counties. 


February 28, 1912. 
A. D. Nysg, Treasurer, 


Bedford, Iowa. 


Dear Sir: Yours of the 25th instant addressed to the attorney 
general has been referred to me for reply. 


Your questions are: 


‘‘Hirst. In a senatorial district composed of two counties, 
is it necessary to get signers in both counties on a nomination 
paper to place a candidate’s name on the ballot at the primary 
election ? 

‘‘Second. Do signatures on nomination papers necessarily 
have to be written in ink?’’ 


Subdivision 2 of code supplement section 1087-al0 provides: 


‘‘If for a representative in congress, district elector, or 
senator in the general assembly in districts composed of more 
than one county, by at least two per centum of the voters of 
his party, as shown by the last general election, in at least 
one-half of the counties of the district, and in the aggregate 
not less than one per centum of the total vote of his party 
in such district, as shown by the last general election.’’ 


Hence, it follows that your first interrogatory should be answered 
in the negative. However, the signatures should aggregate not less 
than one per centum of the total vote of the party in both counties 
of the district. 

The statute seems to be silent on the question of whether or not 
the nomination paper should be signed in ink. Hence, I am of the 
opinion that this interrogatory should also be answered in the 
negative. 


Yours very truly, 
C. A. Rossing, 
Assistant Attorney General, 


ATTORNEY GENERAL’S OPINIONS 135 


TAXATION.—The owner of a stock of goods on January 1st 1s per- 
sonally lable for the taxes levied thereon and cannot escape 
such liability by transferring the goods. 

March 6, 1912. 

Hon. W. J. McCarty, County Treasurer, 


Emmetsburg, Iowa. 


Dear Sir: Your letter of the 26th ultimo to the attorney gen- 
eral was referred to me for reply. 

You request an opinion from this department upon the follow- 
ing state of facts which I quote from your letter: 


‘A sells stock of merchandise to B May, 1910, and continues 
the business. Does A have to pay the tax of 1910 due in 1911, 
nothing being said by either party as to taxes? 

‘‘ Another case: C sells stock (feed, flour, ete.) to D on 
January 20, 1912, before assessor makes assessment. Which 
one should be assessed for 1912, C or D? Is merchandise same 
as other personal property, assessed to owner January Ist?’’ 


I think your first question should be answered in the affirmative. 
A would be personally liable for the 1910 taxes. He cannot relieve 
himself of that obligation by selling the stock to another. The 
taxes, however, would be a lien upon the stock of merchandise and 
could. be enforced against the stock, no matter who owned it, but 
B would not be personally hable for the taxes upon the stock nor 
would they be a lien upon his real estate. 

Under the second case supposed by you C should be assessed 
for the stock of feed and flour, as he was the owner thereof on 
January 1st, as I understand it. Taxes on stocks of merchandise 
remain a lien on such stocks so long as they are kept intact. I eall 
your attention to the case reported in the 123d Iowa at page 485, 
which seems to definitely settle these questions. 


Respectfully yours, 
N. J. LE&s, 
Special Counsel. 


136 ATTORNEY GENERAL’S OPINIONS 


CANDIDATES.—A candidate for office should be a resident of the dis- 
trict in order to be eligible for the office. 


Mr. C. A. WHALEN, March 6, 1912. 
Decorah, Iowa. 


DEAR Sir: Yours of the 24th ult. addressed to the attorney 
general has been referred to me for reply. 

Your question, briefly stated, is whether or not a single man 
whose permanent residence is in Chickasaw county and has been 
since 1908, but who has been teaching in another county during 
most of the time since 1908, would be eligible to the office of county 
superintendent of Chickasaw county, the nomination for which is 
to be made at the primaries in June, 1912, and you ask, **Must he 
give up his residence in Winneshiek county in order to become a 
candidate for said primaries, or may he become a candidate in 
Chickasaw county and still retain his residence in Winneshiek 
county ?”’ 

It is a fundamental proposition that a party must be a resident 
of the territory for which he seeks nomination, but if his permanent 
residence is there, this is sufficient, even though he may have a 
temporary residence elsewhere. On your statement of the matter, 
the party still has his permanent residence in Chickasaw county, 
for he voted there in 1910, although he had been teaching in the 
other county since 1908. If, during the time he has been teaching 
in Winneshiek county, he claimed his permanent home in Chicka- 
saw county and during all the time intended to return to that 
county, then in my judgment he would be eligible, even though 
he is still teaching in Winneshiek county. On the other hand, if 
he did not have that intention, he would have to be a resident of 
Chickasaw county at least sixty days prior to the primary. 

Yours very truly, 
C. A. RoBBINS, 
Assistant Attorney General. 


LopcE PRoPpERTY—TaxaTION oF.—The building and regalia belong- 
ing to an Odd Fellows lodge are not subject to taxation. 


C. F. Davis, Justice of the Peace, March 8, 1912. 
Bloomfield, Iowa. 


Dear Sir: Yours of the 29th ultimo addressed to the attorney 
general has been referred to me for reply. 


ATTORNEY GENERAL’S OPINIONS 137 


Your question briefly stated is whether or not the building and 
regalia belonging to the Odd Fellows are subject to taxation. Also 
whether any money belonging to said lodge and to be used for 
charitable purposes is liable to taxation. 

Subdivision 2 of code supplement section 1304 in which exempt 
property is enumerated provides as follows: 


‘“All grounds and buildings owned and kept by associations 
or corporations for charitable or benevolent purposes, not ex- 
ceeding 160 acres in extent, and not leased or otherwise used 
with a view to pecuniary profit, the books, papers and ap- 
paratus belonging to the above institutions, used solely for the 
purposes above contemplated; moneys and credits belonging 
exclusively to such institutions and devoted solely to sustain- 
ing them.’’ 


Hence, it follows that the money and regalia to which you refer 
are not subject to taxation, nor is the building subject to taxation 
unless it is leased or otherwise used with a view to pecuniary profit. 


Very truly yours, 
C. A. RoBBINS, 


Assistant Attorney General. 


SHERIFF—COMPENSATION OF AFTER EXPIRATION OF TERM.—A sher- 
iff rendering services after the expiration of his term is not 
entitled to retain the fees earned in connection with such 


services. 
March 9, 1912. 


Hon. L. E. FRANCIS, 
Spirit Lake, Iowa. 

DEAR FRANCIS: I am in receipt of your communication of the 
2d instant in which you say that in Osceola county the sheriff, 
pursuant to the provisions of section 504 of the code, has per- 
formed services after the expiration of his term of office, and you 
request an opinion as to whether under these circumstances he is 
entitled to retain the fees for the services. 

I submitted the matter to Mr. Robbins to look up and he, after 
a conference with Judge Henderson, came to the conclusion that 
the sheriff is not entitled to retain the fees. After giving the 
matter some consideration I arrive at the same conclusion. The 
sheriff is virtually upon a salary basis. (Section 510-a supplement 
to the code, 1907.) 


138 ATTORNEY GENERAL’S OPINIONS 


It is true that the fees of his office are applied upon his salary, 
but that is a mere matter of convenience in bookkeeping. The 
sheriff having received his full salary, would not, in my opinion, 
be entitled to retain the fees because fees are only to be consid- 
ered in the matter of determining whéther anything additional is ° 
to be paid to the sheriff at the time of settlement with the board 
of supervisors. Furthermore, while the sheriff could lawfully per- 
form the services under section 505 of the code, he might have 
transferred these papers to the incoming sheriff and relieved him- 
self of that duty. 

It seems to me this is the safer and more reasonable view to 
take, although I can see that the question is not free from doubt. 

Yours very truly, 
GEORGE COSssoN, 
Attorney General of Iowa. 


Y. M. C. A. Properry—Exrempt From Taxation.—A building 
owned by the Young Men’s Christian Association, or leased 
by such association where no rent is reserved and the build- 
ing is used only for appropriate objects of such association 
is exempt from taxation. 

Mr. E. L. Gui, March 11, 1912. 

Conrad, Iowa. 

Dear Sir: Your letter of the 4th instant addressed to the at- 
torney general has been referred to me for reply. 

Your question, briefly stated, is, whether or not a building 
used for the purpose of reading room, gymnasium and assembly 
room in connection with the Young Men’s Christian Association 
would be subject to taxation. 


Subdivision 2 of code supplement section 1304 provides: 


‘“All grounds and buildings used for public libraries, in- 
cluding libraries owned and kept by private individuals, 
associations or corporations for public use and not for private 
profit, and for literary, scientific, charitable, benevolent, ag- 
ricultural and religious institutions, and societies devoted 
solely to the appropriate objects of these institutions, not 
exceeding one hundred and sixty acres in extent, and not 
leased or otherwise used with a view to pecuniary profit, but 
all deeds or leases by which such property is held ghall 
be filed for record before the property above described shall 
be omitted from assessment.’’ 


ATTORNEY GENERAL'S OPINIONS 139 


Hence, I am of the opinion that where the building is owned 
by the Young Men’s Christian Association, or where it is leased 
by such association and where no rent is reserved and the build- 
ing is used only for the appropriate objects of such institutions, 
the same would be exempt from taxation. 

I herewith enclose a blank form which I think would be sufficient 
upon which to take the preliminary subscriptions. As to the 
articles of incorporation, I would suggest that you correspond 
with some similar association either here or elsewhere and they 
will doubtless be able to furnish you copies of their articles of 
incorporation. 

Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


PEDDLERS—LICENSE REQUIRED.—Peddlers may be required to pay 
a license to the county when operating outside of the city 
or town; when operating within a city or town the city has 
power to regulate, license and tax them. 


Mr. H. M. Harwicx, March 13, 1912. 
51114 Broadway, 
Milwaukee, Wisconsin. 


Dear Sir: Yours of the 11th instant addressed to the treasurer 
of state has been referred to this department for reply. 
By code supplement section 1347-a, it is provided: 


‘Peddlers plying their vocation in any county in this 
state outside of a city or incorporated town shall pay an 
annual county tax of twenty-five dollars for each pack ped- 
dler or hawkers on foot, fifty dollars for each one horse con- 
veyance, and seventy-five dollars for each two horse convey- 
ance.’ 


This tax is paid to the county treasurer who issues a duplicate 
receipt, and upon presentation of one of the same to the county 
auditor, he issues a license for the term of one year from the date 
thereof. 


Code supplement section 700 provides, with reference to the 
powers of cities: 


‘“They shall have power to regulate, license and tax ped- 
dlers.’’ 


140 ATTORNEY GENERAL’S OPINIONS 


Hence, you will observe that while the law is the same through- 
out the state where one seeks to sell outside the city or town, yet 
within a city or town the regulations are controlled by the pat 
ticular city or town. 


Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


BANKS—ASSESSMENT—TAXATION Or.—Banks being assessed are 
not entitled to have any deduction made from their asses- 
ment on account of the fact that part of the capital is in- 
vested in drainage bonds which are exempt from taxation. 


March 21, 1912. 
W. L. Barker, City Solicstor, 
Cresco, Iowa. 


Dear Sir: Your letter of the 18th instant to the attorney gen- 

eral has been referred to me for reply. 

You request an opinion from this department as to whether 
drainage bonds issued. under the laws of this state are exempt 
from taxation in the hands of private bankers when held as a 
part of the assets of the bank. 

It is my view that such bonds are not exempt under the cir- 
cumstances suggested, or, in other words, that when such bonds 
are held by a private bank as a part of its assests, they may not 
be deducted from the total value of moneys and credits for the 
purpose of taxation. The section of the statute which prescribes 
the manner of assessing a private bank is No. 1321 of the supple- 
ment to the code 1907, as amended by section 4, chapter 68, 
acts of the thirty-fourth general assembly. 

Unless such deduction of such securities is denied, there would 
be a discrimination in the assessment of private banks and the 
shares of stock in incorporated banks. 


Respectfully yours, 
N. J. Les, 
Special Counsel. 


ATTORNEY GENERAL’S OPINIONS 141 


RESIDENTS—F'or PuRPOSES OF TAXATION.—Where one has no legal 
residence elsewhere his temporary residence of a year should 
be considered his place of residence for taxation purposes. 


March 22, 1912. 
Rev. W. H. SHipmMan, 


College Springs, Iowa. 


Dear Mr. Suipman: Replying to yours of the 16th instant rela- 
tive to the taxation of moneys and credits, the law generally pro- 
vides that moneys and credits shall be assessed to the owner at 
the place where he is residing. If he has no legal residence else- 
where, then his temporary residence of a year should be consid- 
ered his place of residence, and he should there give in all moneys 
and credits, choses in action and intangible property, unless the 
same is kept entirely without the state and not under his per- 
sonal charge and also taxed in another state. Of course he should 
not pay double taxes, but in the absence of this, the person him- 
self should give his money and credits in at his place of residence. 


Yours very truly, 
GEORGE Cosson, 
Attorney General. 


AUTOMOBILES—LICENSE T'ax.—The license tax provided for auto- 
mobiles may not be exacted unless such automobile is used 
upon the highway. 


March 22, 1912. 
Mr. CHaAs. 8. STEWART, 


Bristow, Iowa. 


Dear Sir: I am in receipt of your communication of the 16th 
instant advising that you understand a state license on automo- 
biles is in lieu of all other taxes. 

The law does not require the payment of a license unless the 
automobile is to be used; that is to say, an old automobile stored 
which is not used at all on the highways, is not required to have 
a license and a register number. In all such cases the machine 
should be assessed as other personal property at its actual value. 


Yours very truly, 
GEORGE COSSON, 
Attorney General. 


142 ATTORNEY GENERAL’S OPINIONS 


Roap Pottw Tax—Wuo Liaste For.—Mexicans or other railway- 
employees residents of a township are subject to road poll 
tax even though not citizens of this country. 

March 29, 1912. 

Mr. L. J. NEwQuist, 

Dudley, Iowa. 


Dear Sir: Hon. Frank A. Nimocks of Ottumwa, Iowa, has writ- 
ten this department that you desired an opinion as to whether 
certain Mexicans who worked on the railway as section men in 
your township may be required to perform labor upon the roads, 
under section 1550 of the supplement to the code, 1907. Mr. 
Nimocks says that these men have been there for some time and 
worked there all last season, and that some of them remained dur- 
ing the winter and are there during the present time. 

If these men are residents of your township they are subject to 
a road poll tax, and the fact that they are not citizens of this 


country would not afford them an excuse from performing such 
labor. 


Respectfully yours, 
N. J. Les, 
Special Cownsel. 


WoMEN—ELIGIBLE TO CERTAIN OFFICES.—Women are eligible to 
the offices of county recorder, county superintendent and li- 
brary trustee, and ineligible to other offices. 

3 March 30, 1912. 

Hon. N. R. Morison, Mayor, 

Traer, Iowa. 


Dear Sir: Your letter of the 27th instant addressed to the 
attorney general has been referred to me for reply. 

The question briefly stated is, whether or not a woman is 
eligible to the office of park commissioner of an incorporated town. 

Code supplement section 850-a provides for the election of park 
commissioners in cities containing a population of forty thousand 
or over, and also provides: 


‘Cand all other cities and towns may, by ordinance, provide 
for the election of three park commissioners whose terms of 
office shall be six years,’’ ete. 


ATTORNEY GENERAL’S OPINIONS 143 


It will be observed that this section is silent as to the qualifica- 
tions of such park commissioners, and I find no other provision 
in the chapter which attempts to fix their qualifications. 

Our supreme court, in passing upon the right of an alien to 
hold the office of sheriff under the laws of Iowa, laid down the 
following proposition: 


‘‘There is no provision in our constitution or statute upon 
that subject, yet it is certainly a fundamental principle of 
our government that none but qualified electors can hold an 
elective office unless otherwise specially provided.’’ 


State vs. Van Beek, 87 Iowa, at 577. 


It has recently been held by our supreme court that a woman 
could not be granted a permit to sell intoxicating liquors under 
a statute which limited such right to qualified electors. 


In re Carragher, 149 Iowa, 225. 


The only instances known to the writer in which women are 
eligible to office are: 

First, the office of library trustee provided for by code supple- 
ment section 728, wherein it is provided: 


‘‘Bona fide citizens and residents of the city or town, male 
or female, over the age of twenty-one years, are alone eligible 
to membership.”’ 


Second, the office of county recorder, provided for in code sec- 
tion 493, which reads as follows: 


‘‘Tn counties with a population of ten thousand or less, the 
same person may hold the office of county recorder and treas- 
urer, and no person shall be disqualified on account of sex 
from holding the office of recorder.’’ 


Third— 


‘‘School officers or members of the board may be of either 
sex.’’ Code section 2748. 


Fourth— 


‘‘The county superintendent who may be of either sex, shall 
be the holder of a first grade certificate,’’ ete. Code supple- 
ment section 2734-b. 


144 ATTORNEY GENERAL’S OPINIONS 


If there are any other instances, they have escaped my attention. 
Henee, it follows that your inquiry must be answered in the neg- 
ative. 

Yours truly, 
C. A. RoBBINS, 
Assistant Attorney General. 


County AND Motor VEHICLE Roap Funp—Controut By BOARD OF 
SUPERVISORS.—The county motor vehicle road fund is under 
absolute control of the board of supervisors except that it 
must be used for certain specified purposes and ou the 
hmits of cities and towns. 

April 1, 1912, 

Mr. W. FE. Tripp, 

Kent, Iowa. 


DEAR Sir: Yours of the 18th ult. addressed to the attorney gen- 
eral has been referred to me for reply. 

Your question is, whether or not the board of supervisors has 
absolute control over the expenditure of the fund arising from 
automobile taxes, or whether the same must be divided among the 
different townships of a particular county. 

Section 33 of chapter 72 of the acts of the thirty-fourth general 
assembly provides for the apportionment of this tax among the 
respective counties of the state in the same ratio as the number 
of townships in the several counties bears to the total number of 
townships in the state, and further provides: 


‘‘When such apportionment has been made the state treas- 
urer shall forthwith remit to the county treasurers of the seyv- 
eral counties of the state the amount of money so apportioned 
to the respective counties, and the county treasurer of each 
county immediately upon the receipt of such money shall 
charge himself therewith and credit the same to a fund to be 
designated as the ‘county motor vehicle road fund,’ and he 
shall forthwith give notice to the county auditor of the amount 
of money so received. The said county motor vehicle road 
fund shall be expended for the following purposes only: the 
crowning, draining, dragging, graveling or macadamizing of 
public highways outside of the limits of cities and towns, and 
for the building of permanent culverts on such highways. Such 
culverts shall be constructed of concrete or stone, and said 


ATTORNEY GENERAL’S OPINIONS 145 


fund shall be under the control of the board of supervisors 
for said purposes only, and shall be paid out on warrants on 
said fund drawn by the county auditor, duly pupouzed by 
the board of supervisors entered on record. +4 


Inasmuch as there is no provision expressly requiring the money 
to be expended in the several townships of the county, I am in- 
clined to the view that the legislature intended to leave the entire 
matter as to where the fund should be expended to the discretion 
of the board of supervisors. As to the number of townships in 
a particular county, it is only material for the purpose of de- 
terming the amount of money which goes to that particular 
county. 

Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


Farm PropucTsS—WHEN HEixeMprT From ASSESSMENT.—In order to 
have farm products exempt from assessment it must be har- 
vested by the landlord, and where harvested by the tenant 
the exemption is not available. 


H. N. Wricut, County Auditor. April 2, 1912. 
Mount Pleasant, Iowa. 

DEAR Sir: Yours of the Ist instant addressed to the attorney 
general has been referred to me for reply. 

Your question briefly stated is, whether or not corn received 
as rent is taxable. 

I have been unable to find the supreme court decision to which 
you refer, and whether or not it has been passed upon by the 
supreme court, I am unable to state. However, I call your at- 
tention to lines 1 and 2 of subdivision 3 of section 1304 of the sup- 
plement to the code, 1907, which read as follows: 


‘‘The farm produce of the person assessed, harvested by him, 
and all wool shorn from his sheep, within one year previous 
to the listing * * * * are not to be taxed. 


I am inclined to the view that where the landlord harvests the 
crop, or his share of it, that he would be entitled to this exemp- 
tion, but where the same is harvested by the tenant, that he would 


not be entitled to the exemption. 
Yours truly, 


'C. A. Rossins, 
Assistant Attorney General. 


10 


146 ATTORNEY GENERAL’S OPINIONS 


LAND CONTRACTS—ASSESSMENT AND TAXATION Or.—Land contracts 
which are not merely options to purchase but are binding on 
both the seller and purchaser are taxable, and one indebted 
on such contract may deduct the amount of such indebtedness 
from his moneys and credits when being assessed. 


April 6, 1912. 
A. Ray Maxwe uu, City Solicitor, 


Corning, Iowa. 


DeAr Sir: Your letter of the 5th instant addressed to the at- 
torney general has been referred to me for reply. 

Your question briefly stated is, whether or not a citizen of a 
taxing district in Iowa being assessed on moneys and credits may 
deduct therefrom indebtedness owing on a land contract for land 
purchased in Canada. 


Code section 1311 provides, with reference to this matter: 


‘‘He will be entitled to deduct from the actual value there- 
of the gross amount of all debts in good faith owing by him.’’ 


and there will not be found in this section anything which tends 
to limit the indebtedness to be deducted to indebtedness held with- 
in the taxing district, or even within the state. 

Our supreme court has held that land contracts which were not 
merely options to purchase, but which were mutually obligatory, 
binding the former owner of the land to sell and the purchaser 
to pay the agreed purchase price, were credits within the meaning 
of the law, and should be assessed to the vendor of the land. This 
being true, it necessarily follows that the same contract would 
constitute an indebtedness owing by the purchaser. 


Clark vs. Horn, 122 Iowa, 375; 
Cross vs. Snakenburg, 126 Iowa, 336. 


The question here presented is, whether or not the indebtedness 
to be deducted is limited to that held by persons residing within 
the taxing district, and I am inclined to think this question should 
be answered in the negative. It seems to me that a little clear 
thinking will show it could not be otherwise. For instance, on 
January Ist, 1912, I am indebted on a thousand dollar note due in 
five years held by a bank in-my own taxing district. There will 
be no question but what I would have the right to deduct such 
indebtedness from any assessment made against me on account 


ATTORNEY GENERAL’S OPINIONS 147 


of moneys and credits owned by me. By the time I am again 
assessed on my moneys and credits, this thousand dollar note owed 
by me has been transferred by the bank in my taxing district 
to a bank in Chicago. The indebtedness remains the same, but I 
would still be entitled to deduct it from my assessment in 1913, 
and by the next year when I am again assessed on my moneys and 
credits my note is still outstanding, but instead of being held by 
the bank in Chicago, is owned and held by a bank in Winnipeg. 
Certainly I would still be entitled to have the deduction made, 
for the indebtedness is still in good faith owing by me. If this 
were not the rule, a person being assessed on moneys and credits 
would be required to know, before being entitled to have the de- 
duction made for indebtedness which he owes, and be able to show 
where his obligations are held. For aught that the person being 
assessed may know, the land contract to which you refer, while 
perhaps given ‘to some person in Canada, may in fact be owned 
and held by some person in his own taxing district. 


Yours truly, 
C. A. RoBBINs, 
Assistant Attorney General. 


CoLLEGES.—Endowment property exempt from taxation. 
April 9, 1912. 
I. F. Meyer, President, 
Ellsworth College, 
lowa Falls, Iowa. 


DEAR Sir: Yours of the 5th instant addressed to the attorney 
general has been referred to me for reply. 

Your first question is: ‘‘ When did the statute exempting college 
endowment property from taxation go into effect in Iowa? 

This exemption was first provided for in chapter 54 of the 
acts of the thirty-second general assembly which became effective 
July 4, 1907. 

Your second question is: ‘‘When did the new tax law with 
reference to land held by colleges go into effect?’’ 

This provision is first found in chapter 61 of the acts of the 
thirty-fourth general assembly and became effective July 4, 1911. 

Your next inquiry is, whether or not there is specifically any 
law to prevent an independent academy from receiving students 


148: - ATTORNEY GENERAL’S OPINIONS 


from the country schools on the same conditions as they are re- 
ceived by the high schools,—that is, whether their home district 
would be compelled to pay tuition to such academy the same as 
to high schools which they attend outside their home district. 

Section 1 of chapter 146 of the acts of the thirty-fourth general 
assembly provides: _ 


‘‘Any person of school age who is a resident of a school 
corporation not offering a four year high school course and 
who has completed the course of study offered in such school 
corporation shall be permitted to attend any high school that 
will receive him, provided the average cost of tuition allowed 
shall not exceed the average cost of tuition in the nearest high 
school,’’ ete. 


It would scarcely be contended that the term ‘‘any high school’’ 
would be sufficiently elastic to include an academy. ,In fact, this 
department has construed this term ‘‘any high school’’ in such 
a way as to exclude the private high school from the provisions 
of this chapter, and on the same theory and for a greater reason, 
the words should not be held to include an academy. 

You ask the further question: ‘‘Why should not the country 
student here at Iowa Falls. elect to attend the Ellsworth college 
academy and have the district pay his tuition the same as it would 
if he attended. the high school ?’’ 

This inquiry is one that might well be put to the members of 
the general assembly, but until it has changed the language of 
chapter 146, the chapter itself will stand in the way of such action. 

Yours truly, 
C. A. RoBBINsS, 
Assistant Attorney General. 


Dracaine or Roaps.—An automobile club may be employed to drag 
the public highways the same as an individual or firm. 


April 12, 1912. 
Gro. 8S. ALLYN, Cashier, 


Mount Ayr, Iowa. 
Desar Sir: Yours of the 9th instant addressed to the attorney 
general has been referred to me for reply. 
Your inquiry briefly stated is, whether or not the township 
trustees might employ a road dragging club to drag the roads. 


ATTORNEY GENERAL’S OPINIONS 149 


I see no legal objection to this being done if the club is a legal 
entity, such as an incorporated company or a partnership firm 
doing business under a firm name, and even if this be not true, 
the contract could be made with some representative of the club, 
and then let the members of the club assist in doing the work 
or in having it done. 


Yours very truly, 
C. A. RosBIns, 
Assistant Attorney General. 


JUSTICE OF THE PEACE.—Not entitled to office supplies. 
April 18, 1912. 


Co. DANIS, Jie... 
Bloomfield, Iowa. 


DEAR Sir: Yours of the 8th instant addressed to the attorney 
general has been referred to me for reply. 

Your question is, whether or not, under code section 1073, a 
justice of the peace is a county officer in such a sense as to be 
entitled to have his office rent, ete., furnished by the board of 
supervisors. 

While the section to which you refer states that the justice ‘‘shall 
be a county officer,’’ yet it is not all county officers who are thus 


supplied. Code section 468 provides: 


‘‘The board of supervisors shall furnish the clerk of the 
district court, sheriff, recorder, treasurer, auditor, county at- 
torney and county superintendent with offices at the county 
seat, together with fuel, lights, blanks, books and stationery 
necessary and proper to enable them to discharge the duties 
of their respective offices.’’ 


Inasmuch as justices are not included in this enumeration, the 
legislative intent must have been not to allow them this benefit. 


Yours truly, 
C. A. RoBsins, 
Assistant Attorney General. 


150 ATTORNEY GENERAL’S OPINIONS 


REGISTRATION OF VOTERS—WHEN REQUIRED.—No registration of 
voters is required for primary election. 


April 18, 1912. 
A. B. Maxwetu, City Clerk, 
Ames, Iowa. 


Dear Sir: Yours of yesterday addressed to the attorney general 
has been referred to me for reply. 

Your question briefly stated is, whether or not registration of 
voters is required for the primary election the same as for general 
and city elections. 

This inquiry should be answered in the negative. 


Yours very truly, 
C. A. Rossing, 
Assistant Attorney General. 


SOLDIERS’ EXEMPTIONS—-SPECIAL ASSESSMENTS.—The property of 
a soldier is liable for special assessments levied for payment 
of local improvements even though otherwise exempt. 


April 25, 1912. 
Mr. W. H. McCunz, 
900 Dewitt St., 
Clinton, Iowa. 


DEAR Str: Yours of the 15th instant addressed to the attorney 
general has been referred to me for reply. 

Your question briefly stated is, whether or not your house and 
lot in the city of Clinton is lable for special assessments levied for 
sewer and other improvements in view of the fact that you are a 
soldier and the property is otherwise exempt from taxation. 

This department has ruled that the soldiers’ exemption laws do 
not apply to special assessments levied for the payment of local 
improvements. Hence, it follows that your inquiry must be an- 
swered in the affirmative. : 

Yours truly, 
C. A. RosBsins, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 151 


SUPERVISORS.—How nominated. 
May 4, 1912. 
Mr. J. W. Hospers, 
Orange City, Iowa. 


Dear Sir: I am in receipt of your communication of the 3d in- 
stant requesting an opinion as to whether it is necessary for a candi- 
date for a member of the board of supervisors, in a county where 
the county is divided into supervisor districts, to file nomination 
papers in the office of the county auditor; or whether an affidavit 
as prescribed by section 1087-al10 is sufficient, and advising that 
in some counties they are filing such nomination papers, whereas 
in others they are not. 

It is not at all surprising that the law is being construed two 
different ways for the reason that there are two conflicting provi- 
sions in the section. A member of the board of supervisors, even 
if elected from a supervisor: district, is a county officer because 
his duties pertain to the county. See the cases cited in Words & 
Phrases under the title ‘‘County officer.’’ 

The section, however, also contains the provision that ‘‘ a eandi- 
date for an office to be filled by the voters of a subdivision of a 
county,’’ ete., ‘‘shall not be required to file any nomination paper 
or papers,’’ and farther on provides that ‘‘each and every candi- 
date shall file an affidavit stating that he is eligible to the office 
for which he is a candidate.’’ 

A candidate for a member of the board of supervisors when the 
county is divided into supervisor districts is undoubtedly a candi- 
date for an office to be filled by the voters of a subdivision of a 
county. Inasmuch then as there are two conflicting provisions, 
perhaps the latter provision ought to govern; however this may be, 
a construction should not be placed upon the act which would tend 
to disqualify a large number of candidates in view of these con- 
flicting provisions, and therefore I should say that a candidate 
would, if he complied with either provision, be entitled to have 
his name placed upon the ballot although it might be the safer 
thing for any candidate to circulate a nomination paper inasmuch 
as he is to be properly considered an elective county officer. 

Yours very truly, 
GEORGE Cosson, 
Attorney General. 


152 ATTORNEY GENERAL’S OPINIONS 
TAXATION—LODGE PROPERTY—WHEN EXEMPT. 


May 10, 1912. 
Mr. J. C. Stroup, ; 


Inwood, Iowa. 


DEAR Sir: Yours of. the 9th instant addressed to the attorney 
general has been referred to me for reply. 

Your first question briefly stated is whether or not shares of 
building and loan stock owned by I. O. O. F. lodge is exempt from 
taxation. 

Code suplement section 1304, paragraph 2, provides that the 
following classes of property are not to be taxed: ‘‘Grounds and 
buildings belonging to benevolent institutions and societies devoted 
solely to the appropriate object of these institutions; * * * * 
moneys and eredits belong exclusively to such institutions and 
devoted solely to sustaining them, but not exceeding in amount or 
income the amount prescribed by their charters or articles of in- 
corporation. ’’ “: 

Assuming that your lodge is a benevolent institution, the shares 
of stock would come within the definition of moneys and credits 
and should not be assessed. 

Your second question is: ‘‘Is building and loan stock taxable?’’ 

This question should be answered in the affirmative. See code 
section 1326. | 

Your third question is: ‘‘What is the penalty, if any, for run- 
ning an auto on last year’s license?”’ 

This penalty is provided by section 22 of chapter 72 of the acts 
of the thirty-fourth general assembly which reads as follows: 


“The violation of any of the provisions of sections from 
three to fifteen both inclusive of this act shall constitute a 
misdemeanor punishable by a fine not exceeding fifty dollars.’’ 


Yours truly, 
C. A. Rossing, 
Attorney General of Iowa. 


ATTORNEY GENERAL’S OPINIONS . 153 


RESIDENCE—LEGAL—How ACQUIRED AND Lost. 


May 10, 1912. 
Mr. F. T. HANSEN, 


Forest City, Iowa. 


Dear Sir: I am in receipt of your communication of the 6th 
inst. advising that you are a candidate for the office of superin- 
tendent of schools of Winnebago county; that Winnebago county 
has always been your home; that you were, however, temporarily 
absent for some months while you were superintendent of schools 
of Emmet county; that you are again living in Winnebago county, 
and that you have not at any time abandoned or intended to aban- 
don Winnebago county as your legal residence. You request an 
opinion in view of these facts as to whether you can properly con- 
sider Winnebago county your legal residence. 

If Winnebago county was your home and you have never in fact 
or intentionally obtained a new legal residence nor abandoned your 
residence in Winnebago county, the mere fact that you were away 
from there for some months, or even a year, would not result in 
depriving you of your legal residence in Winnebago county. 

Where one has a legal residence and does not actually intend to 
or in fact acquire a new residence by voting and exercising the 
rights of citizenship elsewhere, he may retain his old residence. 
This is constantly being done by men holding political office and 
who are living at the county seat or state capital and voting at 
their old homes although they may have their families with them. 

Yours very truly, 
GEORGE Cosson, 
Attorney General. 


PRIMARY ELECTIONS—TiIME oF Fitinc PArperS—How CoMPUTED. 


May 10, 1912. 
Mr. E. J. RIEGEL, 


County Auditor Lyon County, 
Rock Rapids, Iowa. 


Dear Sir: I am in receipt of your communication of the 4th 
inst. advising that a candidate for county office presented affidavit 
and nomination papers for filing in your office at 4:30 P. M. Satur- 
day. You request to be advised as to whether you can properly 


154 ATTORNEY GENERAL’S OPINIONS 


file the paper or, in other words, whether there was thirty days 
before the time of filing and the holding of the primary on June 34d. 
The law does not recognize parts of days in the absence of some 
specific requirement. Paragraph 23, section 48 of the code, which 
gives direction for construing our statute provides that: 


‘‘In computing time, the first day shall be excluded and the 
last day included, unless the last falls on Sunday, in which 
case the time prescribed shall be extended so as to include the 
whole of the following Monday.’’ 


That being true a filing on Saturday was a filing thirty days . 
before the primary and, as before stated, the particular hour is of 
no consequence. When the statute provides ‘‘clear’’ days or so 
many days between, then the day of filing and the day in question 
must be excluded but otherwise the first day is excluded and the 
last day inncluded in counting the time. 

Yours very truly, 
GEORGE COSssoN, 
Attorney General. 


PRIMARY HKLECTIONS—ALPHABETICAL Lists—ARRANGEMENT OF. 


May 10, 1912. 
Mr. Ross McLAuGHLIn, 
Missouri Valley, Iowa. 


Dear Sir: Your letter of the 4th instant addressed to. the 
attorney general has been referred to me for reply. 

Your question briefly stated is whether or not, in placing the 
names upon the ballot in alphabetical order as required by the 
statute, the name of McLaughlin should precede or follow the name 
of Murray. | 

There seems to be no uniform practice with reference to the 
matter. For instance: The Iowa Telephone Company in the 
preparation of their directory in this city have placed all names 
commencing with Me before any of the other names commencing 
with’the letter M, while dockets in the office of the clerk of the 
supreme court and the auditor of state have all names commencing 
with Me following all the other names commencing with the letter 
M; whereas, in the office of the secretary of state the names com- 
mencing with Me immediately follow names commencing with the 
letters Ma and precede the names commencing with the letters Mad. 


ATTORNEY GENERAL’S OPINIONS 155 


It would seem that different blankbook manufacturers have had 
different ideas with reference to which should take precedence, and 
hence the lack of uniformity. I am inclined to the view, however, 
that a strict compliance with the law would require that a name 
commencing with Me should immediately follow names commencing 
with the letters Ma, and that in reality Me is the equivalent of Mae, 
and that, whether it is such equivalent or not, in any event the 
name of McLaughlin should precede the name of Murray. 


Yours truly, 
C. A. Ropsins, 
Assistant Attorney General. 


PAvInc—ASSESsSING Cost To Ramway.—A railway is chargeable 
with its share of cost of paving adjacent to property. 


May 20, 1912. 
A. H. BrerKamp, Cashier, 


Durant Savings Bank, 
Durant, Iowa. 


DEAR Sir: Yours of the 17th instant addressed to the attorney 
general has been referred to me for reply. 

Your question briefly stated is, whether or not a city or town 
may properly assess one-half the expense of paving a street to a 
railway company where the company owns one-half of the street. 

The property owned by the railway company is properly charge- 
able with its share of the cost,—not necessarily an equal division, 
but according to actual benefits received by the property. See MV. 
& St. L. Ry. Co. vs. Inndquist, 119 Iowa, at 146. This rule, how- 
ever, seems to apply only where the fee title of the adjacent prop- 
erty is in the railway company. See page 148 of the same opinion. 

It was held by a divided court in the case of C., R. I. G P. Ry. Co. 
vs. City of Ottumwa, 112 Iowa, 300, that where the title was not 
owned by the railway company, but it simply had a right of way 
or easement over the land, that such right of way or easement was 
not liable to such special assessment. 


Yours truly, 
C. A. Rossing, 
Assistant Attorney General, 


156 ; ATTORNEY GENERAL’S OPINIONS 


PRIMARY—PUBLICATION OF PROCLAMATION.—The law only requires 
that notice be published in one newspaper. 


May 21, 1912. 


E. 8. Morcomss, Publisher, 
Storm Lake, Jowa. 


DeEAr Sir: Yours of the 20th instant addressed to the attorney 
general has been referred to me for reply. 

Your question briefly stated is, whether or not the primary elec- 
tion proclamation must be published in two newspapers. 

The answer to this question calls for the construction of code 
supplement section 1087-al2, which provides: 


‘‘Such auditor shall forthwith publish a proclamation of the 
time of holding the primary election. * * * Such notice 
shall be published once each week for two consecutive weeks 
before the primary election, in not to exceed two newspapers 
of general circulation in the county. One of such newspapers 
shall represent the political party which cast the largest vote in 
‘such county at the last preceding general election, and the 
other, if any, shall represent the political party which cast 
the next largest vote in such county at such general election.’’ 


In my opinion this language makes it mandatory that the notice 
be published in one newspaper representing the dominant political 
party, and that, while it is perfectly proper to publish said notice 
in the second newspaper representing the next largest party, as 
shown by the vote, yet the publication in the second newspaper is 
at the option of the auditor rather than being a mandatory require- 


ment. 
Yours truly, 


C. A. RoBBIns, 
Assistant Attorney General. 


CouUNTY OFFICERS—CHANGE oF SALARY Durine TERM OF OFFICE.— 
Supervisors have no authority to raise or lower salary during 
an officer’s term. 

May 22, 1912. 

O. W. WitHam, County Attorney, 

Greenfield, Iowa. 


DEAR Siz: Your two letters of the 15th instant addressed to the 
attorney general have been referred to me for reply. 


. ATTORNEY GENERAL’S OPINIONS 157 


In one letter you propound the question as to whether or not it 
is within the power of the board of supervisors of the county to 
raise, lower or change the salary of a county officer during his term 
of office, and you eall attention to the Whitaker case reported in 
81 Iowa, 527. - 

The doctrine of this case is still the law, and hence, it follows 
that this question must be answered in the negative. 

Yours truly, 
C. A. Rossins, 
Assistant Attorney General. 


PRIMARY— WITHDRAWAL OF CANDIDATE.—A person filing an affi- 
davit as a candidate should not be permitted to withdraw same. 


May 22, 1912. 


C. K. Netson, County Auditor, 
Forest City, Iowa. 


DEAR Sir: Yours of the 20th instant addressed to the attorney 
general has been referred to me for reply. 

Your question briefly stated is, whether or not a person filing an 
affidavit for an office to be voted for by the voters of a subdivision 
of a county, and where no other nomination papers are required 
may thereafter file a withdrawal which would have the effect of 
eancelling said affidavit and of relieving the officer from printing 
the name on the ballot, and if so, whether or not the same party at 
a still later date may cancel such withdrawal and thereby restore 
the affidavit so as to require the printing of his name upon the 
ballot. 


Code supplement section 1087-al0, providing for nomination 
papers, provides: 


‘‘A nomination paper, when filed, shall not be withdrawn 
nor added to, nor any signature thereon revoked.’’ 
The same section further provides: 


‘*Hach and every candidate shall make and file his affidavit 
stating that he is eligible to the office and that he will be a 
bona fide eandidate for nomination for said office, and shall 
file such affidavit with the said nomination paper or papers 
when such paper or papers are required.’’ 


158 ATTORNEY GENERAL’S OPINIONS 


While the affidavit is in one sense distinguishable from nomina- 
tion papers, yet where the office is one to be filled by the voters 
of a subdivision of a county, such affidavit takes the place of, and 
in fact, becomes the nomination paper and the same reasons why a 
nomination paper should not be withdrawn would apply equally 
to the affidavit. 

While the question is not entirely free from doubt, there are 
some reasons why the party ought to be permitted to restore his 
name after having attempted to cancel the affidavit, in view of the 
fact that the same had not been acted upon and no action was re- 
quired until the time arrived for printing the ballot, and in view 
of the whole situation, the doubt should be resolved in favor of the 
candidate’s right to have his name printed upon the ballot, leay- 
ing to other parties adversely interested their right to contest. 


Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


CANDIDATES FOR OFFICE—GIVING AWAY Souvenirs.—lIt is: illegal 
for candidates for offiee to give away lead pencils containing 
matter advertising their candidacy. 


May 27, 1912. 
BLANCHARD BROS., 


Davenport, Iowa. ‘ 


GENTLEMEN: Your letter of May 18th, together with yours of 
the 11th ult., addressed to the attorney general, has been referred 
to me for reply. I note the opinion of former Attorney General 
Byers, copy of which you enclose. 

Your question briefly stated is, whether or not a candidate for 
office may lawfully make use of advertising pencils such as the 
sample enclosed which has printed upon it the following: 


‘“‘Vote for Henry Eshbaugh, Democratic Candidate for 
Sheriff, Montgomery County, Ohio. I will appreciate your 
Support.’’ 


The pencil also bears a likeness of someone, presumably the can- 
didate named, 


ATTORNEY GENERAL’S OPINIONS 159 


Our statute, code section 4914, provides: 


‘“Any person offering or giving a bribe to any elector for 
the purpose of influencing his vote at any election authorized 
by law, or any elector entitled to vote at such election re- 
celving such bribe, shall be fined not exceeding five hundred 
dollars, or imprisoned in the county jail not exceeding one 
year, or both.’’ 


Code supplement section 1087-a33 provides: 


‘‘Any person offering or giving a bribe, either in money or 
other consideration, to any elector for the purpose of influenc- 
ing his vote at a primary election, or any elector entitled to 
vote at such primary election, receiving and accepting such 
bribe shall be deemed guilty of a disdemeanor, and upon con- 
viction, shall be fined not less than one hundred dollars, nor 
more than five hundred dollars, or be imprisoned in the county 
jail not less than thirty days nor more than six months.’’ 

‘‘The word ‘bribe’ signifies anything of value or advantage 
given or accepted with a corrupt intent to influence unlaw- 
fully the person to whom it is given in his action, vote or 
Opinion.’’ 

Vol. 1, Words and Phrases, page 867, under the heading ‘‘ Bribe.’’ 


While the value of a pencil is insignificant in amount, and this 
fact doubtless led former Attorney General Byers to give the 
opinion which he did, yet the pencil has some value, and as you 
say in your letter of the 11th ult., ‘‘They take the place of an an- 
nouncement card and give the candidate a hundred times more 
advertising value.’’ If a candidate might lawfully give away one 
such pencil for the purpose of influencing the voter, he might also 
by the same rule give away a box of such pencils, and in view of 
the foregoing statutory provision, I am unable to concur with the 
holding of former Attorney General Byers, and am inclined to 
the view that the use of such pencils for the purpose of influencing 
voters would be illegal. 


Yours truly, 
C. A. Ropsins, 
Assistant Attorney General. 


160 ATTORNEY GENERAL’S OPINIONS 


JUDGES OF ELECTION—APPOINTMENT BY BOARD OF SUPERVISORS— 
AutTHoRITY oF AuprTtor.—An auditor cannot make change in 
judges selected by board but would have power to fill vacancy 
when board is not in session. 


Mr. Henry Powe Lt, May 28, 1912. 
105 South Whitney St., 
Carroll, Iowa. 


DEAR Sir: Yours of yesterday addressed to the attorney gen- 
eral has been referred to me for reply. 

Your inquiry is as to whether or not the county auditor is author- 
ized by law to change the judges of election appointed by the 
board of supervisors. 


Code section 1093 provides: 


‘“The county board of supervisors may designate which of 
them shall serve as judges. The membership of such election 
board shall be made up or completed by the board of super- 
visors from parties which cast the largest and next largest 
number of votes in said precinct at the last general election.’’ 


The section further provides: 


‘In ease of vacancies happening therein the county auditor 
may make the appointment to fill same when the board of 
supervisors 1s not in session.”’ 


Hence it follows that the auditor would not have power to make 
a change in the selection of judges made by the board but he 
would have power to fill a vacancy when the board is not in ses- 
sion, and this may be what has occurred. 
Yours truly, 
. C. A. Ropsins, 
Assistant Attorney General. 


Primary ELECTIONS—SuUPERVISORS.—Ballot should designate long 
and short term candidates. 


Mr. E. W. CussBaGg, May 31, 1912. 
Ida Grove, Iowa. 
DEAR Str: Yours of the 29th instant addressed to the attorney 
general has been referred to me for reply. 
Your first question is, whether or not it is necessary for a can- 
didate for supervisor to designate upon his nomination papers 


ATTORNEY GENERAL’S OPINIONS 161 


which of the terms he is a candidate for when there are two terms 
to be filled,—one expiring in 1913 and the other in 1914. 

This question should be answered in the affirmative. 

Your next question is: ‘‘Is it necessary in making up the pri- 
mary ballot that it be designated on said ballot the office each can- 
didate is running for by inserting the year in which the term 
expires. ’’ 

This question should also be answered in the affirmative. That 
is to say, I believe the uniform custom is to distinguish between 
these offices by printing upon the ballot a statement in parenthesis: 
‘For the term commencing on , inserting such date rather 
than designating it by the expiration of the term. 


Yours truly, 
C. A. ROBBINS, 


Assistant Attorney General. 


PRIMARY ELECTIONS—TOWNSHIP COMMITTEEMEN.—Names of may 


be printed on primary ballot. 


May 31, 1912. 
T. W. Napier, Auditor, 
Mt. Ayr, Iowa. 


Dear Sir: Yours of the 18th instant addressed to the attorney 
general has been referred to me for reply. 

Your question is, whether the names of candidates for township 
committeemen should be printed on the primary ballot or must 
they be written or pasted in with uniform white pasters. 

By examination of code supplement section 1087-a14, prescribing 
the form of the ballot, you will find under the heading for party 
committeemen the names of John Doe and Richard Roe printed 
thereon, also a blank line to give the voter an opportunity to write 
or paste in the name of anyone whom he may desire for party com- 
mitteeman in case he does not desire to vote for either John Doe 
or Richard Roe. From this it would appear to be perfectly proper 
to print in the names of candidates for party committeemen, but 
the blank line should also be left as indicated on the form of 


ballot prescribed. 
Yours truly, 


C. A. Ropsins, 
Assistant Attorney General. 


11 


162 ATTORNEY GENERAL’S OPINIONS 


PRIMARY ELECTION—ADVERTISING AT Potus.—It is not illegal to 
place advertising matter within one hundred feet of primary 


election polls. 
June 5, 1912. 
Mr. CHarues N. DAHLBERG, 


Storm Lake, lowa. 


Dear Sir: Your of the 4th instant addressed to the attorney 
general has been referred to me for reply. 

You call attention to the fact that at the primary election recent- 
ly held bills, posters and other advertising matter in the interest of 
various candidates were displayed in the polling places along side 
the cards of instruction to voters, and inquire whether or not 
there is anything illegal in connection with such practice. You 
say, ‘‘It seems to me lke electioneering indirectly.’’ 

While the practice is one which perhaps should not be coun- 
tenaneced or approved, yet I find no statute which directly pro- 
hibits the same. The statute which you doubtless have in mind 
which prevents electioneering within any polling place or within 
one hundred feet thereof is code supplement section 1134, and 
applies to the general election only, and not to the primary elec- 
11077 

Yours very truly, 
C. A. Rossing, 
Assistant Attorney General. 


PRIMARY ELECTIONS.—County conventions not confined in nomina- 
tions to persons voted for at the primary. 


| June 10, 1912. 
Simon FisHer, County Attorney, 
Rock Rapids, Iowa. 


DEAR Sir: Yours of the 8th inst. addressed to the attorney 
general has been referred to me for reply. 

Your question has reference to the power of the county con- 
vntion to nominate county officers where the primary has failed 
to result such nomination. 

In my judgment the county convention may make such nomina- 
tions where votes were cast for the office at the primary whether 
the name of the candidates were printed upon the ballot or not, 
and that in such cases the county convention is not limited to 


ATTORNEY GENERAL’S OPINIONS 163 


persons receiving votes in the primary but may nominate a per- 
son who received votes at the primary or a person who did not 
receive votes at the primary for such office. 


Yours truly, 
C. A. RoBBINS, 
Assistant Attorney General. 


RESIDENCE—LEGAL.—One’s legal residence is his permanent resi- 
dence even though he may be temporarily absent. 


June 10, 1912. 
Mr. G. M. MILuer, 


Lock Box 138, Hazleton, Iowa. 


DEAR Sir: Yours of the 4th inst. addressed to the attorney 
general has been referred to me for reply. 


Your question briefly. stated is, whether or not a former resident 
or citizen of Buchanan County, who is and has been in the em- 
ploy of the state weighing coal for seven or eight years, and has 
bought a home and moved his family to Polk County, where his 
place of employment is located, should vote in Polk or in Buchanan 
County. 


It very frequently occurs that a person may have a domicile in 
one county to which he intends at some future time to return even 
though he has had for several years his residence in another county, 
and the question depends so largely upon the intention of the 
particular person that it is hard to lay down any definite rule. 
For instance, Governor Carroll has lived in Des Moines for a 
number of years and owns his home on Ninth street in which he 
lives, and yet he returns every year to Bloomfield in Davis county 
to vote because he claims that as his home and it is his intention 
to return there when his official duties are completed. The Attor- 
ney General also owns his home in Des Moines and while he has 
lived here several years always returns to Audubon county to vote 
because he claims that as his domicile. So that in the case about 
which you inquire if the party still has an intention of returning 
to Buchanan county when his employment with the state is ter- 
minated he would doubtless have a right to vote in that county. 
On the other hand if he has no intention to return to Buchanan 


164 ATTORNEY GENERAL’S OPINIONS 


county but intends to remain in Polk county even after his employ- 
ment with the state is terminated then the proper place for him to 
vote would be in Polk county rather than Buchanan county. 


Yours truly, 
C. A. RossBins, 
Assistant Attorney General. 


Fres.—Amount sheriff may charge for summoning grand or petit 
jury. 
June 18, 1912. 


C. J. CasH, County Attorney, 
Anamosa, Iowa. 


Dear Str: Yours of the 5th instant addressed to the attorney 
general has been referred to me for reply. 


You call attention to the provisions of subdivision 5 of code 
supplement section 511 and then make the.following statement: 


‘“Many of the sheriffs contend that the sixty cents for each 
person is to compensate them for all expenses in summoning 
jurors and as they are allowed no mileage for this particular 
item, they should be allowed to retain the sixty cents and not 
apply it on the salary. Other officers contend that no mileage 
or expenses were allowed on this item because it was assumed 
by the legislature that the sheriffs could summon these jurors 
in conection with other work and that the salary now takes 
the place of the sixty cents formerly paid.’’ 


and request copy of any opinion that may have been rendered by 
this department on this question, and if none has been rendered, 
you ask for our view as to the proper construction of the section 
in view of the fact that the sheriff is now a salaried officer. 

So far as I have been able to find, no opinion has been given 
covering this question. The subdivision to which you refer pro- 
vides: 

‘“Kach sheriff is entitled to charge and receive the follow- 
ing fees: 
‘‘For summoning a grand or trial jury for each person 


served, sixty cents, to be paid out of the county treasury; and 
such sum shall be in full compensation for such service.”’ 


ATTORNEY GENERAL’S OPINIONS 165 


Code supplement section 508 now provides: 


‘Quarterly itemized reports under oath * * *- shall be 
made to the board of supervisors by the sheriff, of all fees and 
mileage charged or taxed, and all that are collected by him and 
his deputies, including all sums for which the county is liable, 
except for dieting and lodging prisoners; and at the time of 
making such quarterly reports he shall make full settlement 
with said board, filing therewith the receipts of the county 
treasurer for all moneys paid over to him.’’ 


Code supplement section 510-a provides: 


‘‘In all counties, the expenses necessarily incurred and 
actually paid while engaged in the performance of official 
duties in serving criminal process or commitments to the peni- 
tentiaries, industrial schools or asylums, shall be allowed by 
the board of supervisors, and paid as other claims against 
the county and he shall be allowed to retain all mileage col- 
lected by him in the service of civil process.’’ 


In the case of Bybee vs. Marion County, 128 Iowa, 610, our su- 
preme court considered a similar question which they stated as fol- 
lows: 


and 


‘‘The question presented in this case is whether the board 
is required to allow the sheriff as expenses the amounts neces- 
sarily paid out by him for railroad fare, livery hire and hotel 
bills, while traveling for the purpose of serving criminal proc- 
ess.’ 


in passing upon it they made use of the following language: 


‘Tt is econeeded for the sheriff that the mileage in the serv- 
ice of civil process covers his expenses incurred in connection 
with such services, but it is claimed that as no mileage is al- 
lowed him in the service of criminal process, the expenses in- 
cident to such service are to be allowed the sheriff as reason- 
able expenses of his office. It is difficult to interpret code 
supplement 1902, sections 510-a, 510-b, as applied to the pre- 
vious provisions found in code section 511, but we think the 
effect of the subsequent statute was to appropriate to the bene- 
fit of the county, all the fees provided for in code, section 511, 
except the mileage for service of process in civil cases, and to 
allow the sheriff a salary in lieu of such compensation, which 
salary is made to depend to some extent on the amount of 


166 ATTORNEY GENERAL’S OPINIONS 


fees received by him. As no provision is made for reimbursing 
him for his traveling expenses in the service of criminal proc- 
ess, it must have been intended by the legislature that such 
expenses shall be allowed as ‘expenses. necessarily incurred and 
actually paid while engaged in the performance of official 
duties in the service of criminal process,’ etc., as provided in 
code supplement 1902, section 510-a. 


‘Tt seems to us that it could not have been the intention of 
the legislature that, in fixing his compensation, the mileage 
for the service of criminal process should be appropriated by 
the county as a part of the receipts of the office, while the trav- 
eling expenses in making such service should be borne by the 
officer.’’ 


In view of this opinion I am inclined to the belief that if the 
question were ever presented to our supreme court it would either 
hold that the sheriff would be entitled to this sixty cents provided 
for in subdivision 5, or that the sheriff should be entitled to charge 
his ‘‘expenses necessarily incurred and actually paid’’ while en- 
gaged in summoning such jurors, and in view of the provisions 
of code section 508 already auoted herein, I am inclined to think 
that the court would not hold that the officer would be entitled to 
retain the sixty cents, for it requires him to account for all fees 
and mileage charged or taxed, including all sums for which the 
county is liable. Hence, the only conclusion left would be that 
the sheriff would be reauired to account for the sixty cents, but 
would be entitled to have allowed him his expenses necessarily 
incurred and actually paid while summoning such jurors. 


Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


REPRESENTATIVE—NOMINATION OF—How MaApkg. 
June 19, 1912. 
J. J. Ratnpow, Auditor, 
Waterloo, lowa. 


Dear Sir: Yours of the 18th instant addressed to the attorney 
general has been referred to me for reply. 

You say that for representative you have three candidates and 
were entitled to nominate two, and that one received 1,460 votes, 


ATTORNEY GENERAL’S OPINIONS 167 


one 1,950 votes and one 1,436 votes, and state that you would like 
to know who are nominated. 

If there were no other votes cast for the office of representa- 
tive other than for the three whose votes you have given, then the 
one receiving 1,460 and the one receiving 1,950 votes should be 
declared the nominees. 

The rule is, to divide the whole number of votes cast for the 
office by the number of officers to be nominated for that office, and 
take this result as the 100%, the 35% of which a person must have 
before he could be nominated, and in this case you should take 
the 1,950 votes, the 1,460 votes and the 1,436 votes and all other 
votes cast for that office, add the same together and divide the 
total by two, and if each of the two highest, that is, the one having 
the 1.460 votes and the one having the 1,950 votes, have 35% of 
the quotient, then such parties should be declared the nominees. 

I will say, however, that as this is a state office it lies with 
the state canvassing board rather than with the county board of 
canvassers to determine who is nominated. See code supplement 
sections 1087-al19 and 1087-a20. 


Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


UNION SOLDIERS.—Burial of. 
June 26, 1912. 


Mr. Cuas. E. Scuouz, County Attorney, 
Guttenberg, Iowa. 


Dear Sir: Yours of the 22d inst. addressed to the attorney 
general has been referred to me for reply. 

You call attention to code section 430 as amended by chapter 
25 of the acts of the thirty-fourth general assembly, and say, 


‘‘A portion of this cemetery has been set apart for burial 
of Union soldiers. There have been more than fifty inter- 
ments in the cemetery but not in this portion set apart. Now 
the question is whether ihe fifty interments refer to the inter- 
ments in the whole cemetery or to the portion set apart for 
said Union soldiers.’’ 


168 ATTORNEY GENERAL’S OPINIONS 


The portion added to the section by the last general assembly 
provides: 


‘‘Or for the erection of a monument in any cemetery in the 
county, a portion of which (cemetery) has been set apart for 
the burial of Union soldiers, sailors and marines, in which 
(cemetery) there have been not less than fifty interments.’’ 


It is not clear whether the second word ‘‘which,’’ quoted above, 
refers to the cemetery or to the portion set apart, but I think the 
more natural and usual construction of this language requires that 
the second word ‘‘which’’ be construed to have reference to the 
cemetery as a whole rather than to the portion set apart for the 
burial of Union soldiers. There would be no greater reason for 
authorizing the erection of a soldiers’ monument in a cemetery 
having fifty soldiers buried in the portion thereof set apart for the 
burial of soldiers than there would be for the erection of a like 
monument in another cemetery having a like portion set apart 
for the burial of soldiers and fifty soldiers buried in the cemetery 
but a less number in the portion so set apart. 


Yours truly, 
C. A. RosBins, 
Assistant Attorney General. 


ForEST RESERVATION—TAXATION oF.—Land planted to trees can 
only be taxed one dollar per acre without reference to the real 


value. 
June 26, 1912. 
Mr. EK. C. FARREN, 


Kansas City, Mo. 

DEAR Sir: Yours of the 21st inst. addressed to the attorney 
general has been referred to me for reply. 

You ask to be advised as to whether or not a premium is offered 
by the state of Iowa to the planter of trees, or a remission of taxes 
on acreage so planted, or anything of that sort. 

Forest reserves from two acres up, containing 200 growing trees 
on each acre are by law required to be assessed at the taxable 
value of $1.00 per acre without reference to the real value. Fruit - 
tree reservations from one to five acres in extent, containing at 
least 70 fruit trees on each acre are required to be assessed at $1.00 
per acre without reference to the real value. Where other fruit, 
forest or ornamental trees are planted, the assessed value of the 


ATTORNEY GENERAL’S OPINIONS 169 


land upon which they are planted is not to be increased on account 
thereof. (See code supplement sections 1400-c¢ to 1400-1 inclusive.) 


Yours truly, 
C. A. Ropsins, 


Assistant Attorney General. 


Primary ELEecTions.—A candidate nominated on more than one 
ticket must designate party ticket on which his name is to 


appear. 
July 6, 1912. 


Mr. SamMuen U. BoswortH, 
Mt. Pleasant, Iowa. 


DeEAR SiR: Yours of the 30th ult. duly received, and will say 
that in my judgment the legality of the election of the delegates 
should not be affected by the fact that they had voted the ticket 
of, or were members of another political party. 

By the last sentence of code supplement section 1087-a6 it is 
provided in case the person is nominated upon more than one 
ticket he shall forthwith file with the proper officer a written 
declaration indicating the party under which his name is to be 
printed on the official ballot. And I think the same rule should 
apply to delegates where they are elected by more than one po- 
litical party. 

With reference to the question where only one delegate was 
elected who voted the prohibition ticket, this department has held 
that where there is a failure to elect delegates that the old dele- 
gates hold over, and hence the old prohibition delegates, together 
with the one elected, should have met and held their county con- 
vention. I am inclined to think, however, that the county conven- 
tion could not be lawfully convened at this time but that under 
the following provisions found in code supplement section 1087-a24, 


‘*Vacancies in nominations in such offices occurring after 
the holding of county, district or state convention, or on 
falure of any such convention to fill the vacancy in a nomina- 
tion as aforesaid, then it shall be filled by the party committee 
for the county, district or state as the case may be.’’ 


it would be the right and duty of your committee to fill the vacan- 
cies in these offices. 

Your last question is whether or not the county committee may 
elect delegates to the state convention. In my judgment this ques- 


aD ATTORNEY GENERAL’S OPINIONS 


tion should be answered in the negative, and that in all prob- 
ability the failure to hold a county convention would result in 
that county being unrepresented in the state convention. 

I will return your letter as requested. 


Yours truly, 
C. A. RoBBINs, 


Assistant Attorney General. 


County WaArRRANTS—ORDER OF PAYMENT.—Where a warrant is 
stamped ‘‘unpaid for want of funds’’ and thereafter partially 
paid and new warrant issued for balance, the new warrant 
should take precedence in time of payment over warrants 


issued after the original warrant. 
July 9, 1912. 


CEMENT Propucts Co., 
Estherville, Iowa. 


GENTLEMEN: Yours of the 29th ult. addressed to the attorney 
general has been referred to me for reply. 

You call attention to the different methods that have been fol- 
lowed by the various county treasurers with reference to the pay- 
ment of county warrants and your question briefly stated is, 
whether or not a county warrant has been presented for payment 
and stamped ‘‘unpaid for want of funds’’ and thereafter a partial 
payment of the warrant made and a new warrant issued for the 
unpaid balance such new warrant should be paid prior to the pay- 
ment of the warrants issued subsequently to the presentation of 
the first warrant. 


Code supplement section 483 provides: 


‘“When a warrant drawn by the auditor on the treasurer is 
presented for payment, and not paid for want of money, the 
treasurer shall indorse thereon a note of that fact and the 
date of presentation, and sign it, and thenceforth it shall draw 
interest at the rate of five per cent. He shall keep a record 
of the number and amount of the warrants presented and in- 
dorsed for non-payment, which shall be paid in the order of 
such presentation.’ . 


Code section 485 provides: 


‘“When a person wishing to make a payment into the treas- 
ury presents a warrant of an amount greater than such pay- 


ATTORNEY GENERAL’S OPINIONS 171 


ment, or presents for payment a warrant in excess of the 
funds in the treasury, the treasurer shall cancel the same and 
give the holder a certificate of the overplus, upon the pres- 
entation of which to the county auditor he shall file it, and 
issue a new warrant of that amount, and charge the treasurer 
therewith ; and such certificate is transferable by delivery, and 
will entitle the holder to the new warrant, payable to his 
order, and containing reference to the original warrant.’’ 


There is no doubt but that the first section quoted entitled the 
warrant to be paid in the order of its presentation and, in my 
judgment, the new warrant should be paid in the same order as 
the old, otherwise there would be no necessity or purpose in having 
the new warrant contain a ‘‘reference to the original notice’’ as 
provided in the last section quoted. 

I am returning herewith the correspondence as requested. 


Yours truly, 
C. A. Rospsins, 
Assistant Attorney General. 


ScHooLs—F'unps.—Should be separately kept. 
duly 9, 1912. 
HONORABLE JOSEPH MATTES, 
Odebolt, Iowa. 


Dear Sir: Yours of the 6th instant duly received. 

Your question briefly stated is whether or not interest on out- 
standing school house bonds may lawfully be paid from the con- 
tingent fund. 

This question has heretofore been passed upon by this depart- 
ment, and I quote you from an opinion rendered the superintendent 
of public instruction on January 2d of this year: 


‘“‘Your first auestion is: ‘From what fund should the in- 
terest on the bonded indebtedness be paid? Is it legal to 
pay any part or all of this interest from the contingent fund?’ 


‘‘Code supplement section 2768 provides: 


‘<The money collected by tax for the erection of school 
houses and the payment of debts contracted therefor shall be 
called the school house fund; that collected for the payment of 
school buildings bonds shall be called the school building bond 


172 ATTORNEY GENERAL’S OPINIONS 


fund; that for rent, fuel, repairs and other contingent expenses 
necessary for keeping the school in operation, the contingent 
fund; and that received for the payment of teachers, the 
teachers’ fund;’ 


‘Code supplement section 2813 provides: 


‘“*The board of each school corporation shall, at the same 
time and in the same manner as provided with reference to 
other taxes, fix the amount of tax necessary to be levied to 
pay any amount of principal or interest due or to become due 
during the next year in the lawful bonded indebtedness which 
amount shall be certified to the board of supervisors as other 
taxes, and levied by them on the property therein as other 
school taxes are levied, but such tax shall not exceed five mills 
upon the dollar of the assessed valuation of such property for 
money borrowed for improvements.’ 


‘Code supplement section 2783 provides: 


‘*“It.may provide and pay out of the contingent fund to 
insure school property such sum as may be necessary, and may 
purchase dictionaries, library books, including books for the 
purpose of teaching vocal music, maps, charts and apparatus 
for the use of the schools thereof to an amount not exceeding 
twenty-five dollars in any one year for each school room under 
its charge ;’ 

‘‘From an examination of these sections, I am of the opinion 
that the interest on the bonded indebtedness should be paid 
from the school building bond fund, and that no part of the 
same could legally be paid from the contingent fund.’’ 


In addition to the foregoing I call your attention to the decision 
of our supreme court in the case of Wolfe vs. School District, 51 
Towa, 432, wherein it is held that a warrant drawn upon the treas- 
urer of a school district for the payment of lightning rods out of 
the contingent fund was on its face invalid, an expense for that 
purpose not being indispensable to the operation of the school. 

In the course of the opinion in that case the supreme court con- 
strues the word ‘‘necessary,’’ found in code supplement section 
2768, to mean ‘‘indispensably requisite,’’ and that a lightning rod 
was not an ‘‘indispensable requisite’’ for keeping the school in 
operation. 

In other words, the sections heretofore quoted clearly specify 
that the money collected for the payment of school building bonds 


ATTORNEY GENERAL’S OPINIONS 173 


shall be called the school building bond fund and that the only 
things that can be paid from the contingent fund are ‘‘rent, fuel, 
repairs and other contingent expenses necessary for keeping the 
school house in operation.’’ 

Section 2783 enumerates other matters which may be paid for 
out of the contingent fund but there is no provision for the pay- 
ment of interest from the contingent fund. Interest on the school 
building bonds is in no sense a contingent expense but is a fixed 
charge the same as the bonds-themselves. 

While there is no statute making the school officials guilty of 
embezzlement for a diversion of these funds as is provided by 
section 904 of the code where a city councilman or other officer of 
a city participates in, advises, consents to, permits or allows funds 
to be diverted yet, in my judgment, the law clearly contemplates 
that these funds should be kept separate and distinct. 


Yours truly, 
C. A. Ropsins, 


Assistant Attorney General. 


Pott Tax—Amount CoOLLECTIBLE.—Total poll tax might exceed 
three dollars but not to exceed six dollars and fifty cents. 


July 12, 1912. 
Mr. FE. F. Haircut, 


Peterson, Iowa. 


DEAR Sir: Yours of the 10th inst. addressed to the attorney 
general has been referred to me for reply. 

Your question is, can more than $3.00 be collected for poll tax? 
This auestion should be answered in the affirmative. 

By subdivision 2 of code supplement section 1303, a poll tax of 
50e on each male resident over twenty-one years of age is provided 
for. 

By code supplement section 1550, it is further provided that 
the road supervisors shall require all able bodied male residents of 
their district between the ages of twenty-one and forty-five to per- 
form two days’ labor on the roads between the Ist day of April 
and October of each year. 

By code section 1552 each person liable to perform labor on the 
roads as poll tax and who fails to attend is hable to forfeit and 
pay the sum of $3.00 for each day’s delinquency. 


174 ATTORNEY GENERAL’S OPINIONS 


And by code sections 1554 and 1555 this delinquency is required 
to be reported and collected as other taxes. 

Hence, the total poll tax might exceed $3.00 but could not 
exceed $6.50. 

Your tax receipt is herewith returned as requested. 


Yours truly, 
C. A. Rossins, 
Assistant Attorney General. 


PRIMARY ELECTIONS—NUMBER OF VOTES REQUIRED TO NOMINATE. 


July 28, 1912. 
Mr. M. FE. WiutTsE, 


411 East Linn St., 
Marshalltown, Iowa. 


DEAR Sir: I take the liberty of replying to your communica- 
tion of the 19th inst. addressed to Attorney General Cosson be- 
cause of his absence from the city. 

You inquire regarding a ruling made by this department inter- 
preting the provisions of the primary law for writing names of 
candidates for office on the ballot where no nomination papers have 
been filed for such office. 

I do not know what particular opinion you refer to but believe 
that you can get all the information you desire on this subject in 
chapter 59 of the acts of the thirty-fourth general assembly which 
specifies the per cent of votes a person must have in order to be 
nominated for an office where his name igs not printed upon the 
ballot. ey, 

You also ask the following question: ‘‘Where there is only one 
man on the ballot, how many votes does it require for nomination ?”’ 

If a candidate’s name is printed upon the regular ballot and 
he receives but one vote, and no vote is cast for any other candi- 
date for that office the regular candidate would be nominated. 


Yours very truly, 
JOHN FLETCHER, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 175 


INSURANCE—LIFE INSURANCE—TAXATION OF StTocK.—Stock should 
be assessed to the owner, the basis to be its value on the first 
day of January of each year. 


Carrot Bros., Attorneys, August 1, 1912. 
301-304 Lane Bldg., 
Davenport,. Iowa. 


GENTLEMEN: Yours of the 31st ult. addressed to the attorney 
general has been referred to me for reply. 

You call attention to chapter 63 of the acts of the thirty-fourth 
general assembly and state, 


‘It was the understanding of the officers of our company 
at the time this law was passed that the tax of five mills on 
the dollar applied to life insurance companies on stock basis. 
The company we represent is a stock company with a capital 
of $100,000, writing life, health and accident business, and 
the question of taxation of the stock of said company is now 
up for consideration by the assessor of the city of Davenport 
and it is our idea that the stock of this company should be 
assessed on the five mill basis as provided in said chapter 63.’’ 


You ask to be advised as to this matter. 

It will be observed that the chapter to which you refer does not 
undertake to define ‘‘moneyed capital’’ except as the meaning of 
that term is defined by section 5219 of the statutes of the United 
States. Nor does the chapter undertake to define moneys and 
credits. Nor is the term ‘‘moneys and eredits’’ defined by section 
1310 of the code which is amended by section 1 of chapter 63. 

It has been held that shares of stock in railroad companies and 
insurance companies and the like are in a fair sense moneyed 
capital but they are not such within the purview of section 5219. 


First. National Bank vs. Waters, 7 Fed., 152, at 156; 
Mechanics National Bank vs. Baker, 46 Atl., 586; 
Redemption Bank vs. Boston, 125 U.S., 60. 


Hence, it follows that stock in insurance companies is not mon- 
eyed capital and should not be assessed on the 20% basis provided 
for bank stock and moneyed capital by section 5 of chapter 3. 

Our own supreme court in a recent case reversed its former hold- 
ing in the same case and held that corporation stock was not 
moneys and credits. 


See Morrill vs. Bentley, 180 N. W. Rep., 734, 


176 ATTORNEY GENERAL’S OPINIONS 


This being true it follows that such shares of stock should not 
be assessed on the five mill basis provided for by section 1 of chap- 
ter 63 as the basis of taxation for moneys and credits. 

In my judgment shares of stock in insurance companies should 
be assessed under code section 1323 to the owner of the stock, the 
assessment to be on the value of such shares on the first day of 
January in each year as provided therein. 7 


See Layman vs. Iowa Telephone Co., 123 Iowa, 591. 


Hence, the shares of stock in such concerns should be taxed at 
29% of its real value. 


Yours truly, 
C. A. RopBins, 


Assistant Attorney General. 


TAXATION—SECURITIES TAXABLE AND EXEMPT FROM TAXATION. 


August 6, 1912. 
Mr. 8. R. WRIGHTINGTON, 
3 State St., Boston. 


Dear Sir: Yours of the 10th ult. addressed to the treasurer of 
state has been referred to this department for reply. 
Your first question is: 


‘‘Am I right in understanding that under the laws of 1911, 
chapter 63, shares in national banks located in Iowa and in 
Towa banks of discount as well as savings banks are all taxable 
to the holder, and that the bank does not in practice pay the 
tax for the holder?’’ 


The shares are all taxable to the holder as stated, but the bank 
as a matter of practice still in many cases pays the tax for the 
holder as it is obliged to do by the provisions of code section 1325, 
which provides as follows: 


‘‘The corporations described in the preceding sections shall 
be liable for the payment of the taxes assessed to the stock- 
holders of such corporations, and such tax shall be payable 
by the corporation in the same manner and under the same 
penalties as in case of taxes due from an individual taxpayer, 
and may be collected in the same manner as other taxes, or 
by action in the name of the county. Such corporations may 
recover from each stockholder his proportion of the taxes so 


ATTORNEY GENERAL’S OPINIONS Lit 


paid, and shall have a lien on his stock and unpaid dividends 
therefor. If the unpaid dividends are not sufficient to pay 
such tax, the corporation may enforce such lien on the stock 
by public sale of the same, to be made by the sheriff at the 
principal office of such corporation in this state, after giving 
the stockholders thirty days’ notice of the amount of such tax 
and the time and place of sale, such notices to be by registered 
letter addressed to the stockholder at his postoffice address, as 
the same appears upon the books of the company, or is known 
by its secretary.’’ 


Your second question is: 


‘‘T understand that the shares in insurance corporations 
organized under the laws of Iowa are taxable to the holder, 
but that the corporation pays the tax for the holder. What is 
the practice regarding corporations organized outside of 
Tlowa?’’ 


In such eases the shares of stock held by residents of Iowa are 
taxed to such residents, owners of same as their other property and 
they are liable for the payment of the tax. In such cases I know 
of no way of requiring the corporation to pay the tax assessed and 
levied against the individual stockholders. But our supreme court 
has held that the shares of stock in a foreign corporation may be 
assessed to the resident owner of such stock here even though the 
property of the corporation has been fully assessed in the state 
where it is located. 


Judy vs. Beckwith, 114 N. W., 565. 
Your third question is: 


‘‘Am I right in understanding that shares in manufacturing 
and trading corporations whether organized under the laws 
of Iowa or elsewhere are exempt if the property of the cor- 
poration is located in the state, otherwise taxable? What 
happens if part of the property is in the state and part out- 
side?’’ 

Code section 1319 provides for the taxation of property in the 
hands of the manufacturer and that the average value thereof is 
to be ascertained upon the manufactured and unmanufactured 
goods and is to be estimated upon those materials only which enter 
into its combination or manufacture, Machinery used in manu- 


12 


178 ; ATTORNEY GENERAL’S OPINIONS 


facturing establishments shall for the purpose of taxation be re- 
garded as real estate. ‘‘Corporations organized under the laws of 
this state for pecuniary profit and engaged in manufacturing as 
defined by this section and which have their capital represented 
by shares of stock shall through their principal accounting offices 
list their real estate, personal property and moneys and credits in 
the same manner as is required of individuals. The owners of 
capital stock of manufacturing companies as herein provided for 
having listed their property as above directed, shall be exempt 
from assessment and taxation on such shares of capital stock.’’ 
In reply to the last part of your question will say that in my 
judgment if the plant and property located in this state is partly 
listed and assessed by the corporation as required by this section 
that all shares of stock therein would be exempt even though the 
corporation might have a part of its property in some other state. 


Your fourth question is: 


‘‘Are shares in public service corporations taxable to the 

holder and does it matter whether the corporation is doing 

business in the state or is incorporated under the laws of the 
state ?’’ 


Such shares of stock are taxable to the holder and it is imma- 
terial where a corporation does business or whether it is incor- 
porated under the laws of this or some other state. 


Your fifth question is: 


‘“Are shares in unincorporated associations taxable to the 
holder? We have in Massachusetts many voluntary associa- 
tions organized under deeds of trust issuing shares of stock 
like those in corporations. How would you treat such stock 
in lowa?’’ 


Such shares cannot under our laws be recognized but the entire 
property of the association would either be taxed to it the same as 
to a partnership or firm, or the interest of each shareholder might 
be assessed to him as an individual. 

Replying to the last portion of your letter will say that I would 
be glad to look over your statement when completed and give you 
my best judgment as to the correctness thereof in an unofficial way. 


Yours truly, 
C. A. RopsBins, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 179 


Notary PusBLic—ACKNOWLEDGMENTS ON SUNDAY AND LEGAL HOo.t- 
DAYS.—It is legal to take acknowledgments on a holiday but 


illegal on Sunday. 
August 9, 1912. 
Mr. L. W. DAweEs, 


110 Benton St., 
Boone, Iowa. 


Dear Str: Yours of the 6th inst. addressed to the governor of 
the state has been referred to this department for reply. 

Your first question is whether or not it is legal for a notary pub- 
he to take acknowledgments on Sundays and holidays. 

In my judgment it would be perfectly legal to take acknowledg- 
ments on any holiday but that it would be illegal to take the same 
on Sunday. 

Your second question is whether or not the notary lays himself 
lable to law by taking such acknowledgments. 

Code section 5040 provides: 


‘‘Tf any person be found on the first day of the week, com- 
monly called Sunday * * * * engaged in any labor ex- 
cept that of necessity or charity he shall be fined not more 
than $5.00 nor less than $1.00 and be imprisoned in the county 
jail until the fine, with costs of prosecution, shall be paid.’’ 


Hence, your second question should be answered in the affirma- 


tive. 
Yours truly, 
C. A. Ropsins, 


Assistant Attorney General. 


TAXATION.—Personal property taxable for city purposes even 
though on agricultural land which is exempt. 


August 15, 1912. 
Mr. J. S. SMEAD, 


Epworth, Iowa. 


DEAR Sir: Yours of the 12th inst. addressed to the attorney 
general has been referred to me for reply. 

Your question is, is the personal property of a resident agricul- 
turist within the corporate limits of a town subject to corporation 
tax. 

In my judgment this question should be answered in the affirma- 
tive. Where land exceeding ten acres in extent is within the cor- 


180 ATTORNEY GENERAL’S OPINIONS 


porate limits of a town and is used exclusively for agricultural 
purposes it is exempt from certain municipal taxes, but I know of 
no law that makes the same exemption with reference to personal 
property that may be situated thereon. 
Yours truly, 
C. A. RosBIns, 
Assistant Attorney General. 


BoarD OF SUPERVISORS.—What proceedings of required to be pub- 
lished. 


W.S. BILby, County Attorney, September 3, 1912. 
Knoxville, Iowa. 


Dear Sir: Yours of the 23d ult. addressed to the attorney 
general has been referred to me for reply. Your question as stated 
by you is as follows: 


‘“The board of supervisors of Marion county directs me to 
submit to you for your opinion the question of whether or not 
the proceedings of a board of supervisors required under the 
provisions of 1330-c, and under section 1346-g, title VII, 
chapter 1, supplement, code, which relate to the assessment of 
telegraph and telephone companies and railroad and express 
companies, are of such nature as are required to be published 
as official publications under section 441 of the supplement 
code.’’ 


The last section to which you eall attention provides: 


‘* And the two applicants thus showing the greatest number 
of bona fide yearly subscribers living within the county shall 
be the county official papers, in which all the proceedings of 
the county board of supervisors * * .* shall be published 
at the expense of the county during the ensuing year.’’ 

The first section to which you refer provides: 


‘* At the first meeting of the board of supervisors held after 
such statement is received by the county auditor it shall cause 
such statement to be entered in its minute book, and make 
and enter therein an order stating the length of the lines and 
the assessed value of the property of each of said companies 
situated in each city, town, township, or lesser taxing district 
in its-county, as fixed by the executive council, which shall 
constitute the taxable value of said property for taxing pur- 
poses. ’’ 


ATTORNEY GENERAL’S OPINIONS 181 


Our supreme court has said: 


‘‘The proceedings of the board are its official acts, resolu- 
tions and orders upon the various matters which come be- 
fore it.’’ 


Haslett vs. Howard Co., 58 Iowa, 378. 


The second section to which you refer makes a similar provision 
as to the order to be entered by the board. 

It would seem to me that both of these orders are clearly pro- 
ceedings of the board, within the meaning of the term as used in 
code supplement section 441, and henee, it would follow that they 
should be published in some form. However, I am inclined to think 
that it would not be necessary to publish the matter in full, and it 
may be that the same could be abstracted in such a way as to com- 
ply with the law and yet make the publication much less expensive 
to the county. 

I am enclosing you copy of an opinion heretofore rendered the 
county attorney of Madison county covering similar questions. 

In view of the following provision found in both code supple- 
ment sections 13380-c and 1346-g: ‘‘The county auditor shall im- 
mediately thereafter transmit a copy of said order to the councils 
of cities, or towns, and to the trustees of each township in the 
county,’’ it would seem that there is no real necessity for the pub-- 
lication of such matters, as all parties in interest are provided with 
a copy, and that these and other matters might well be excepted 
from the requirements of publication. But this must be done by 
the legislature and not by unwarranted construction of an exist- 


ing statute. 
Yours truly, 
C. A. Ropsins, 


Assistant Attorney General. 


PuBLIC OFFICER—SALARY OF.—Ceases with his death. 


September 12, 1912. 
Hon. JoHN L. BLEAKLY, Auditor, 


State House. 


DEAR Sir: With reference to the question suggested by the 
correspondence which has taken place between A. M. Fellows, 
administrator of the estate of the late Judge L. EH. Fellows, and 
your office, with reference to the right of his estate to recover 


182 ATTORNEY GENERAL’S OPINIONS 


salary for that portion of the month of July following his death 
will say that under our statute salary of judges of the district court 


is a yearly salary and it is only for convenience that the salary is 
payable at stated intervals, and unless the salary were terminated 


immediately upon the death of the incumbent there would be no . 
greater reason why he should not draw the salary for the re- 
mainder of the entire year as well as for the remainder of the cur- 
rent month. The appointment of a successor might have been made 
at once and the compensation of the successor would start imme- 
diately upon his qualifying, and if the estate of the deceased is 
entitled to draw salary for any period of time after his death the 
state would be liable for a double salary during that portion of the 
time after the appointment of the incumbent which it is claimed 
the deceased is also entitled to recover salary for. It seems to me 
that no one would contend that such a result might follow. 

It is well settled that vacancy in the office oceurs upon the death 
of the incumbent. (23 Cye., 517.) I am therefore of the opinion 
that the estate is only entitled to salary for that portion of the 
year during which Judge Fellows lived and performed the duties 
of the office. 

Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


SCHOOLS—TAxES.—When to be levied. 
September 18, 1912. 


J. Foster, Secretry, 
New Sharon, Iowa. 


Dear Simm: Yours of the 16th inst. addressed to the attorney 


general has been referred to me for reply. 
Your question is: 


‘“Would a school of a school township be justified in levy- 
ing tax under section 2806 of the school law after the 3d Mon- © 
day in August or would the secretary be compelled to certify 
ithe 

Both branches of this question should be answered in the nega- 
tive. This section provides: 


‘“No tax shall be estimated by the board after the third Mon- 
day in August in each year.’’ 


ATTORNEY GENERAL’S OPINIONS ; 183 


And our supreme court, in the case of Standard Coal Co. vs. Inde- 
pendent District of Angus, 73 Iowa, 304, held that a tax levied 
by the school district after the date fixed in a similar statute was 
void and its collection was properly restrained by injunction. 
Yours truly, 
C. A. RosBins, 
Assistant Attorney General. 


Muucr Tax.—Money received by city or town should be placed to 
the credit of the general fund. 


September 30, 1912. 
Mr. M. F. Cox, 


clo V. E. Vane, City Auditor, 
Cedar Rapids, Iowa. 


DEAR Sir: Your letter of the 16th instant addressed to Mr. 
George Gallarno of the municipal accounting department of the 
state auditor’s office has been referred to me for reply. You re- 
quest to be advised as to what fund should be credited with the 
money received from the county treasurer as the city’s share of 
the mulet tax. 

The statutes are entirely silent upon this question and in the 
absence of a special statutory provision, money received from any 
source by a city or town should be placed in the general fund. 
There has never been but one attempt made by way of special 
enactment as to the disposition of the mulct tax. Chapter 25 of 
the thirtieth general assembly provided that any city or town 
under special charter, where the mulct law was in free, might 
appropriate not to exceed 2 per cent of the amount of mulct 
tax received by the municipality for the support and maintenance 
of a public library. Whether this provision is now in force is a 
question that I do not wish to pass on at this time. 

It is my opinion that with the exception above referred to, the 
money received by a city or town from the mulct tax should be 
placed in the general fund, and I do not think that after it has 
been placed in the general fund it can be transferred to any other 


fund. 
Yours very truly, 


JOHN FLETCHER, 
Assistant Attorney General. 


184 ATTORNEY GENERAL’S OPINIONS 
SUPERVISORS.— When elected at large and when by district. 


- October 9, 1912. 
GEO. W. SPENCER, Secretary-Treasurer. 
Rockell City, Iowa. 


My Dear Mr. SPENCER: I have yours of the 8th inst. with ref- 
erence to the supervisor situation in your county, and, as suggested 
by you, I am somewhat familiar with it on account of former cor- 
respondence had with interested parties. 

By careful examination of the law you will observe that while 
code section 410 authorizes the people to vote upon the proposition 
to increase or reduce the number of supervisors there is no au- 
thority for the proposition to be submitted to them or voted upon 
by them that the supervisors should be eleced at large rather 
than by districts. 

By section 416 it is provided that ‘‘the board of supervisors 
may, at its regular meeting in January in any even-numbered year, 
divide its county by townships into a number of supervisor dis- 
tricts corresponding to the number of supervisors in such county ; 
or at such regular meeting it may abolish such supervisor dis- 
tricts and provide for electing supervisors for the county at large.’’ 
So that the question of whether supervisors are to be elected by 
districts or at large is lodged with the board of supervisors to de- 
termine and not with the people. | 

In my judgment the resignation of one of the other members 
would simply create another vacacy and would not operate to 
effect a change from 5 to 3 supervisors earlier than would other- 
wise result and it is especially provided that where districts are 
created and any district has no member on the board that a mem- 
ber from that district shall be elected at the next ensuing election. 
(Section 418 of the code.) 

I am firmly convinced that the law should be amended so as to 
abolish supervisor districts and to provide for the election of all 
supervisors at large whether the number in any given county be 
3, 5, or 7, and perhaps your people may be sufficiently interested 
to help the cause along at the coming session of the legislature. 

Yours truly, 


GEORGE COSssON, 
Attorney General. 


ATTORNEY GENERAL’S OPINIONS 185 


JUDGES OF ELECTION—QUALIFICATION—ASSESSOR—Duty oF TO F'uR- 
NisH List of PERSONS SUBJECT TO—TOWNSHIP CLERK—CoM- 
PENSATION OF. 

October 9, 1912. 

N. D. KELLEN, Township Clerk, 
| LeMars, lowa. 


DEAR Sir: Yours of the 30th ult. addressed to the attorney gen- 
eral has been referred to me for reply. 

Your first question briefly stated, is whether or not judges of 
election are required to qualify when they have already qualified 
as township trustees. é 

This question should be answered in the affirmative. Code sec- 
tion 1094 provides: 


‘‘Before opening the polls each of the judges and clerks 
shall take the following oath: ‘I, A. B., do solemnly swear that 
I will impartially, and to the best of my knowledge and ability, 
perform the duties of judge (or clerk) of this election, and 
will studiously endeavor to prevent fraud, deceit and abuse 
in conducting the same.’ ”’ 


The following section provides: 


‘‘Any one of the judges or clerks present may administer 
the oath to the others, and it will be entered in the poll books 
subscribed by the person taking it and certified by the offlcer 
administering it.’’ 


Your second question, as stated you, is: 


‘‘TIf the township assessor does not furnish the township 
clerk with a lst of all persons over twenty-one and under 
forty-five years of age, whose duty is it to compel him to do 
so?’? 


By code section 1540, the assessor was required to furnish to the 
township clerk a list containing the names of all persons required 
to perform two days’ labor on the road as poll tax. 

By code supplement section 1540-a this section was repealed and 
a substitute enacted, and by the new section it is provided that the 
township clerk shall, not later than the 15th day of April, make 
out and deliver to the superintendent of roads a list of all persons 
required to pay road toll tax under the provisions of this act. 
And it is further provided, to enable him to make out such a list 
the assessor shall furnish the clerk of said township before the first 


186 ATTORNEY GENERAL’S OPINIONS 


day of April of each year a complete copy of the assessment lists 
of said township for that year which shall be the basis of such 
poll tax list. 

In my judgment the clerk would have the right to demand this 
list from the assessor and in the event of his failure to furnish the 
same the clerk might bring an action of mandamus to compel the 
assessor to furnish such lst. The assessor and his bondsman would 
also be liable for his failure of duty in this respect. 

Your third question is, ‘‘Can the township clerk charge for tak- 
ing the oath of a road superintendent and putting his bond on 
record ?”’ 

The compensation of the clerk is fixed by code supplement sec- 
tion 591, which fails to provide any compensation for such service. 
Hence, I am of the opinion that this question should be answered 
in the negative. 


The first subdivision of this section, however, provides: 


‘“The township clerk shall receive for each day of eight 
hours necessarily engaged in official business, where no other 
compensation or mode of payment is provided, to be paid out 
of the county treasury, $2.00.’’ 


Work of this sort could doubtless be paid for under this sub- 
division. 
Yours truly, 
C. A. RoBBINs, 
Assistant Attorney General. 


RESIDENCE—LEGAL—F'or ELECTION PURPOSES—WHAT CONSTITUTES. 
| October 21, 1912. 
Dr... T.. 1. Rice, 
Ames, lowa. 


Dear Sir: I am advised by the attorney general that you are 
interested in the question of the right of a student to vote at the 
place where he is attending school, and by his direction I am writing 
you concerning the matter. 

The question was before our supreme court in the case of Vander- 
peel vs. O’Hanlon, 53 Iowa, 246, in which case the court said: 


‘Tf it was the intention of the plaintiff to return to Mitchell 
county when he had finished his education, it would probably 
be conceded that his place of residence, within the meaning 


ATTORNEY GENERAL’S OPINIONS 187 


of the constitution, continue to be in Mitchell county during 
all the time he was absent. And, on the other hand, it would 
probably be admitted, if, when he went to Iowa City, or at 
any time thereafter before he offered to vote, his intention 
was to make that place his home and residence when he ceased 
to attend the University, that such place was and became his 
place of residence in such sense that he would have become a 
legal voter in Johnson county. * * * * 

‘It is undoubtedly true that the residence of the plaintiff 
was in Mitchell county at the time he first went to Iowa City, 
and it must be equally true that it so continued until he 
acquired another. Another proposition will, we think, be con- 
ceded, and that is, that an individual cannot be entitled to 
vote in two different counties in this state at the same elec- 
tion. Yet he may, in a certain sense, actually reside in one 
and be a legal voter in another. He is entitled to vote only 
in the county where his home is—where his fixed place of 
residence is for the time being—and such place is, and must 
be, his domicile, or place of abode, as distinguished from a 
residence acquired as a sojourner for business purposes, the 
attainment of an education, or any other purpose of a tempo- 
rary character. If a person leaves the place of his residence 
or home with intent of residing in some other place and mak- 
ing it his fixed place of residence, but never consummates such 
intent, it cannot be said his residence has been changed there- 
by. But if he so intends, and does actually become a resident 
of another place, then the former residence will be regarded 
as abandoned and a new one acquired.’’ 


In the case of State vs. Savre, 129 Iowa, at page 125, the court 
said : 


‘‘Mere bodily presence or absence cannot have controlling 
effect in determining residence when once established. Many 
qualified voters spend most of their time in pursuits out of 
the ward or even the state. Persons who travel for business or 
pleasure for long or short periods do not lose their residence 
by such absence. But bodily presence ordinarily is essential 
in effecting a domicile in the initiative. One might intend to 
dwell in a place as permanent abode, and yet never see it, 
So he might dwell without thought of remaining. In neither 
event would he be a resident within the meaning of the elec- 


188 ATTORNEY GENERAL’S OPINIONS 


tion laws. There must be the act of abiding without the 
present intent of removing therefrom. * * * The vital 
inquiry, then, in determining the residence of a person always 
is where is his home, the home where he lives, and to which 
he intends to return when absent, or when sick, or when his 
present engagement ends.’’ 


From these decisions it will be observed that it is largely a 
question of the intention of the student as to where his place of 
abode shall be after his school work is finished, and two students 
might have spent the same length of time in the same school and 
one be a resident of and entitled to vote in the town where the- 
school is located, and the other not. A student who has the inten- 
tion of returning to his former home as soon as his school work is 
finished is not a resident of the place where the school is located, 
within the meaning of the law. On the other hand the residence 
of a scholar of full age, who has left the home of his parents on 
coming to the school, intending to make the place where the school 
is located his residence until his school work is finished and then 
intending to locate at some place other than his former home, is 
the place where the school is located. 


Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


PEppiinc.—Sale of from car does not constitute. 


November 6, 1912. 
HUTCHINSON GROCERY Co., 
Decorah, Iowa. 


GENTLEMEN: Yours of the 4th instant addressed to the at- 
torney general has been referred to me for reply. 

Your question briefly stated is, whether or not a resident of 
another state or county may ship in a ear of apples or potatoes 
not raised by him and sell the contents of the car by the bushel to 
the consumer and not be subject to the license provided by our 
law or by city ordinance. : 

This department has heretofore ruled that where the sales are 
made from the car and no peddling is done by the party making 
the sales that neither the license law nor ordinances would be 
violated by sales made in such manner. If, however, they under- 


ATTORNEY GENERAL’S OPINIONS 189 


took to peddle the vegetables around throughout the county and 
outside of the city or town then the license law would apply, and 
if within the town the city ordinance might be made to apply. 
Yours truly, 
C. A. RoBBIns, 
Assistant Attorney General. 


TAXATION.—Validity of certain taxes assessed against certain land 
belonging to the state purchased since the levy. 


November 9, 1912. 
HONORABLE BOARD OF CONTROL, 


State House. 


Sirs: Your letter of the 6th instant, together with letter from 
Geo. O. Free, county treasurer, dated October 29th, requesting 
an opinion in regard to the validity of certain taxes which are 
claimed to be a lien upon certain lands now owned by the state, 
has been referred to me for reply. 

You eall attention to an opinion of former Attorney General 
Mullan of date December 19, 1905; also to one of former At- 
torney General Byers of date December 31, 1907, which have 
some bearing upon the matter. 

In the instant case it appears from the letter of the county 
treasurer that the state obtained its title by deed dated November 
10, 1911, the land having been assessed for taxes in the spring of 
that year, and the taxes levied at the usual time in September 
prior to the time of the purchase by the state. In this respect the 
case is to be distinguished from the case considered by former 
Attorney General Mullan, for in that case the land was conveyed 
by the person to whom it was assessed to the state on the 10th 
day of June, 1904, and prior to the time of the levy of the taxes 
for that year. 

And in the case considered by Mr. Byers the proposed sale of 
the land for taxes was for the taxes of the year 1903. The state 
obtained its title May 23, 1903, before the taxes for the year 1903 
were levied. 

- Hence, the case is to be distinguished from each of the cases 
heretofore considered by this department in the opinions referred 
to. However, it is provided by code section 1015: 


‘‘Taxes upon real estate shall be a lien thereon against all 
persons except the state * * * As between vendor and 


190 ATTORNEY GENERAL’S OPINIONS 


vendee such lien shall attach to such real estate on the 31st 
day of December, following the levy, unless otherwise pro- 
vided in this chapter.’’ 


Inasmuch as the purchase was made by the state prior to De- 
cember 31st following the levy which was made in September, 
the taxes in question were not a lien at the time the real estate 
was purchased by the state. 


Baldwin vs. Mayne, 42 Iowa, 131; 
Rex Lumber Co. vs. Reed, 107 Iowa, 111 at 114. 


Furthermore, it would seem. that after the title had passed to 
the state the provisions of code section 1435 would apply where- 
In it is provided: 


‘‘and no assessment or taxation of such lands, nor the pay- 
ment of any such tax by any person, or the sale and con- 
veyance for taxes of any such lands shall in any manner af- 
fect the right or title of the public therein, or confer upon 
the purchaser or person who pays such taxes any right or 
interest in such land.’’ 


District of Oakland vs. Heurtt, 105 Iowa, 663. 


In view of these authorities I am of the opinion that whatever 
remedy the county may have against the former owner of the 
lands for the collection of such tax, that such tax is not a lien 
upon the land, nor may the land be sold for the same, nor is the 
state in any way liable for the payment of such tax. 


Respectfully, 
C. A. Ropsins, 
Assistant Attorney General. 


MonEys AND CREDITS AND MoneYED CapiTaL.—How taxed, 


November 26, 1912. 


E. S. Wituarp & Co., 
45 Pine St., New York. 


GENTLEMEN: Your of the 19th inst., addressed to the treasurer 
of state has been referred to this department for reply. 


ATTORNEY GENERAL’S OPINIONS 19% 


Your first question is: 


‘‘Tf a local company of your state lends on mortgage, secured 
by real estate of your state, 

‘Is there an annual state tax on the mortgage? Rate? 

“Is there an annual local tax? Average rate? 

‘*Ts there any recording tax that exempts the mortgage there- 
after from any further taxes? Rate? 

‘Tg there an income tax on mortgage interest? Rate?’’ 


All four subdivisions of this question should be answered in the 
negative. However, if the note was held by an individual simply 
as an investment and without any view of negotiating the same, 
or reloaning or reinvesting the money, it would be subject to a 
five mill tax under the provisions of section 1, chapter 63, acts of 
the thirty-fourth general assembly. 

If, on the other hand, the note was held by a bank or other 
moneyed capitalist using his funds in competition with bank 
capital it would be subject to be taxed on twenty per cent of its 
actual value at the rate of levy applicable to other property in 
the taxing district where the holder of the note resides, as pro- 
vided by section 5 of said act. 


Your second question is: 


‘Tf said local company sells and assigns the mortgage to a 
New York company, which records the assignment in your 
state, and thereafter keeps it in New York state, 

‘Is there a tax on the assignment or on the recording of 
the assignment? Rate? 

‘*Must the New York company pay the annual state, annual 
local, income tax of your state, or a license tax for doing 
business ?’’ 

Both subdivisions of this question should be answered in the 
negative. 
Your third question is: 

‘‘If the New York company loans money by taking the 
mortgage directly to itself as mortgagee, and then records it 
in your state, and thereafter keeps it in New York state, must 
it pay the annual state, annual local, income tax of your state, 
or a license tax for doing the business?’’ 

and should be answered in the negative. 
Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


192 ATTORNEY GENERAL’S OPINIONS 


Fire Companres—Mempers or Exempt From Pott Tax.—Members 
of fire department under the control of a city or town are 
exempt from the payment of poll tax. 


November 29, 1912. 
Mr. J. L. JOsuin, 


Prairieburg, Iowa. 


DEAR Sir: Yours of the 26th instant addressed to the attorney 
general has been referred to me for reply. 

Your question as stated by you is, what is necessary to be done 
where a fire company is organized in a city or town in order that 
the members of such company may be legally exempt from poll 
tax ? 


Code section 2462 provides in part as follows: 


‘‘Any person while an active member of any fire engine, 
hook and ladder, hose, or any other company for the extin- 
guishment of fire, or protection of property at fires, under the 
control of the corporate authorities of any city or town, shall 
be exempt from the performance of military duty and labor 
on the roads on account of poll tax, and from serving as a 
Juror,” 

From this it will be seen that no form of organization is required 
except that it be under the control of the corporate authorities. 


Yours truly, 
C. A. RoBBINs, 
Assistant Attorney General. 


County ATToRNEY.—Should be provided with office and supplies 


at expense of county. 
December 9, 1912. 
Mr. FRED JENSEN, 


Spencer, Iowa. 


DEAR Sir: I am in receipt of your communication of the 5th 
instant requesting to be advised (1st) as to whether you are en- 
titled to supphes pursuant to the provisions of section 468 of the 
code; (2d) as to whether or not the board of supervisors should 
furnish you an office at some place other than the court house in 
the event that the office at the court house is not suitable for a 
county attorney’s office. | 


ATTORNEY GENERAL’S OPINIONS 193 


Undoubtedly you are entitled to all such supplies that you would 
use as county attorney the same as any other county officer. Of 
course this does not include supplies which would be used by you 
in your private practice. 

You are also entitled to a suitable office. If the supervisors can 
furnish you a suitable office at the court house they are under no 
obligation to furnish you one elsewhere. If they cannot furnish 
an office suitable and proper at the court house, they should fur- 
nish you with an office elsewhere at Spencer, the county seat of 
your county. 

T am enclosing you copy of an opinion given by former Attorney 
General Mullan which is in harmony with these views. I had also 
furnished an opinion to Mr. O. A. Hammond of your place, in 
which opinion I took the same views as herein expressed. 


Yours very truly, 
GEORGE COSssoN, 
Attorney General. 


SPECIAL ASSESSMENTS.—Property is hable for even though exempt 
from other taxes. 


December 18, 1912. 
Mr. JoHN LEE, 


1036 Water Street, 
Webster City, Iowa. 


DEAR Str: Yours of the 17th instant addressed to the attorney 
general has been referred to me for reply. 

Your question briefly stated is whether or not your property is 
exempt from a special assessment for sewer tax in view of the fact 
that you are a soldier and the property is otherwise exempt from 
taxation. 

The uniform holding of the courts is to the effect that property 
exempt from taxation is not exempt from special assessments on 
the ground that the value of the property is enhanced by the im- 
provement payment for which the special assessment is made. 
Hence, your inquiry should be answered in the negative. 


Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


13 


194 ATTORNEY GENERAL’S OPINIONS 
HunTERS—LIcENSE.—Issued without payment of fee is valid. 


Beans 3 December 18, 1912. 
Mr. F. A. SNYDER, 


Ackley, Iowa. 


DAR Sir: Yours of recent date addressed to the attorney gen- 
eral has been referred to me for reply. 

You call attention to the practice of county auditors signing and 
delivering to others to be issued to the applicant hunting licenses 
in advance of the payment of the fee therefor, and you inquire 
what position has been taken by this department as to the legality 
of such transactions. 

In my judgment the provision requiring the payment of the 
fee before the license is issued is directory and that a license de- 
livered by the auditor directly to the applicant or indirectly to the 
applicant through the medium of an agent for the sake of con- 
venience or otherwise, should be regarded as a lawful license and 
should protect the licensee even though the fee be not paid, and 
that the auditor should stand charged with the fee the same as 
though it had been collected by him. 


Yours truly, 
C. A. RoBBIns, 
Assistant Attorney General. 


BoaRpD OF SUPERVISORS—COMPENSATION OF MrmBrErs.—Members 
not entitled to compensation while attending convention of 
supervisors. 


December 21, 1912. 
C. S. Moorz, County Attorney Elect, 


Rockford, Iowa. 


DEAR Sir: Yours of the 19th instant addressed to the attorney 
general has been referred to me for reply. 

Your question is whether the board of supervisors has a right 
to mileage or per diem alone for attending state conventions of 
the board of supervisors. 

The attendance of such conventions is no part of the official duty 
of the members of the board of supervisors and in my judgment 
they are only entitled to the compensation fixed by code section 469, 
as amended by section 4 of chapter 24 of the acts of the thirty- 
fourth general assembly which is $4.00 per day for each day ac- 


ATTORNEY GENERAL’S OPINIONS 195 


tually in session, but $4.00 per day when not in session but em- 
ployed on committee service. Hence, they are entitled to no per 
diem or mileage for attending such conventions. 


Yours truly, 
C. A. Rossins, 
Assistant Attorney General. 


TERMS OF OFFICE.—To begin second secular day of January next 


after the election. 
December 24, 1912. 
Mr. WM. STRAMPE, 


Supervisor Elect, 
Paullina, Iowa. | 


Dear Sir: I am in receipt of your communication of the 23d 
instant advising that you are the supervisor elect in your county, 
and requesting an opinion as to when you assume the duties of 
your office. 

Section 1060 of the supplement to the code, 1907, as amended 
by chapter 68 acts of the thirty-third general assembly, provides: 


‘‘The term of office of all officers chosen at a general elec- 
tion for a full term shall commence on the second secular day 
of January next thereafter, except when otherwise provided 
by the constitution or by statute;’’ ete. 


It is my opinion that you should assume the duties of your office 
on the second secular day in January, which is Thursday, Janu- 


ary 2d. : 
Yours very truly, 


GEORGE COSSON, 
Attorney General. 


Extracts from letter written to Sherwood A. Clock, County At- 
torney of Franklin County, January 13, 1912. 


In a ease arising in New York, the state of New York assessed 
the shares of one Van Allan in the First National Bank of Albany. 
At that time all the capital of the bank was invested in United 
States securities, and it was asserted that a tax upon the individual 
in respect of the shares that he held in the bank was, unless the 

holdings in United States securities were deducted, a tax upon the 
securities themselves, but the court held otherwise, and that the 


196 ATTORNEY GENERAL’S OPINIONS 


tax on an individual in respect to his shares in a corporation, is 
not regarded as a tax upon the corporation itself. The right of 
such taxation rests upon the theory that shares in corporations are 
property entirely distinct and independent from the property of 
the corporation. 


See Van Allan vs. The Assessors, 3 Wallace, 573; 


Home Savings Bank vs. Des Mores, 205 U. S., at 516 
and 517. 


It was for the purpose of meeting this very distinction that sec- 
tion 4 of chapter 63, acts of the 34th general assembly provided 
that ‘‘shares of stock of national banks and state and savings banks 
and loan and trust companies located in this state shall be assessed 
to the individual stockholders at the place where the bank or loan 
and trust company is located.’’ Hence, if the assessment is to be 
made to the individual stockholder and not to the bank, the bank 
can make no deduction because there is no assessment against it 
on account of the stock. The individual can make no deduction 
-because the bank, and not the individual, is the owner of the non- 
taxable securities. 


BRIEF. 
MOoNEYED CAPITAL. 


Money employed in the carrying on of a business, the object of 
which is the making of profit by its use as money, the capital em- 
ployed in a business in which the stock in trade from which profits 
are expected to accrue, is money; either money itself, or negotiable 
securities readily convertible into money, and having an equitable 
market value; ready money or capital invested in private banking. 


27 Cye., 8238; 
First National Bank vs. Turner, 57 N. E. 110 at 112. 


The term ‘‘moneyed capital’’ as used in section 5219 embraces 
capital employed in national banks and capital employed by 
individuals when the object of their business is the making of profit 
by the use of their moneyed capital as money; but it does not in- 
clude moneyed capital in the hands of corporations, even if its 
business be such as to make its shares moneyed capital when in 
the hands of individuals. 


Mercantile Bank vs. New York, 121 U. S., 138 at 153-7, 


ATTORNEY GENERAL’S OPINIONS 197 


The term was held not to include mining stock in Talbot vs. Silver 
Bow, 139 U. S., 447, where the following language is used: 


‘“‘The term ‘moneyed capital’ as used in section 5219 re- 
specting state taxation of shares of national banks embraces 
capital employed in national banks and capital employed by 
individuals, and the object of their business is the making of 
profit by the use of their moneyed capital as money,—as in 
banking, as that business is defined in the opinion of the court. 
The intention of congress in the national banking system is, 
as we have noticed, in favor of local taxation including there- 
in territorial taxation of national banks upon the same basis 
as is imposed by the locality on other purely moneyed cor- 
porations and capital. The term includes only capital which 
comes into competition with the business of national banks.’’ 


1st National Bank vs. Chapman, 173 U. S., 205 at 214. 


It does not include money which does not come in competition 
with the business of the bank. 


Commercial National Bank vs. Chambers, 56 L. R. A., 352; 
182 U.S. at 560. - 


The term applies only to such capital as is readily solvable into 
money. 


Merc. National Bank vs. N. Y., 28 Fed., 309 at 310. 


The term means ready money or capital invested in private 
banking, and does not comprise capital invested in manufacturing 
or insurance corporations. 


1st National Bank vs. Waters, 7 Fed., 152 at 156. 


Wherever money is employed in the carrying on of a business, 
the object of which is the making of profit by its use as money, 
when invested in loans or securities of a permanent or temporary 
character with a view to sale and reinvestment for the purpose of 
making money out of the operation, it is moneyed capital. 


National Bank vs. Baltimore, 100 Fed., 24 at 29; 
Breseler vs. Wayne County, 49 N. W., 787. 


While shares of stock in railroad companies, insurance com- 
panies, and the like are in a fair sense “‘moneyed capital in the 


198 ATTORNEY GENERAL’S OPINIONS 


hands of individuals’’ they are not such within the purview of 
section 5219. 


Mechanics National Bank vs. Baker, 46 Atl., 586-587 ; 
1st National Bank vs. Chehalis County, 166 U. S., 440; 
Redemption Bank vs. Boston, 125 U. 8., 60. 


The term includes shares of stock or other interests owned by 
individuals in all enterprises in which the capital employed in 
carrying on its business is money where the object of the business 
is the making of profit by its use as money.- The capital thus em- 
ployed is invested for that purpose in securities by way of loans, 
discounts or otherwise, which are from time to time according to 
the rules of business reduced again to money and reinvested. It 
includes money in the hands of individuals employed in a similar 
way invested in loans or securities for the payment of money either 
as an investment of a permanent character or temporarily with a 
view to saving repayment or reinvestment. 


Breseler vs. Wayne County, 49 N. W., 787. 


“In the case of Mercantile National Bank vs. New Y ork, 121 Urs, 
138 at 153, the court, after having reviewed the previous decisions, 
States : 


‘Tt follows, as a deduction from these decisions, that 
‘moneyed capital in the hands of individual citizens’ does not 
necessarily include shares of stock held by them in all cor- 
porations whose capital is employed, according to their re- 
spective corporate powers and privileges, in business carried 
on for the pecuniary profit of shareholders, although shares in 
some corporations, according to the nature of their business, 
may be such moneyed capital. The rule and test of this dif- 
ference is not to be found in that quality attached to shares of 
stock in corporate bodies generally whereby the certificates of 
ownership have a certain appearance of negotiability, so as 
easily to be transferred by delivery * * * * It does not 
follow, because these are invested in such a way as properly 
to constitute moneyed capital, that the shares of stock in the 
corporations themselves must necessarily be within the same 
description. * *,* * The true test of the distinction, 
therefore, can only be found in the nature of the business in 
which the corporation is engaged,”’ 


ATTORNEY GENERAL’S OPINIONS 199 


On page 155 the court further states: 


‘But ‘moneyed capital’ does not mean all capital the value 
of which is measured in terms of money. * * * * Neither 
does it necessarily include all forms of investment in which 
the interest of the owner is expressed in money. Shares of 
stock in railroad companies, mining companies, manufacturing 
companies, and other corporations, are represented by certifi- 
cates showing that the owner is entitled to an interest, ex- 
pressed in money value, * * * * but the property of the 
corporation which constitutes its invested capital may consist 
mainly of real and personal property, which, in the hands of 
individuals, no one would think of calling moneyed capital, 
and its business may not consist in any kind of dealing in 
money, or commercial representatives of money. * * * * 
The business of banking, as defined by law and custom, con- 
sists in the issue of notes payable on demand, intended to 
circulate as money where the banks are banks of issue; in re- 
ceiving deposits payable on demand; in discounting commercial 
paper; making loans of money on collateral security ; buying 
and selling bills of exchange; negotiating loans, and dealing 
in negotiable securities issued by the government, state and 
national, and municipal and other corporations. These are 
the operations in which the capital invested in national banks 
is employed, and it is the nature of that employment which 
constitutes it in the eye of this statute ‘moneyed capital.’ ’’ 


On page 157 the court further states: 
‘‘The terms of the act of congress, therefore, include shares 


of stock or other interests owned by individuals in all enter- 
prises in which the capital employed in carrying on its busi- 
ness is money, where the object of the business is the making 
of profit by its use as money. The moneyed capital thus em- 
ployed is invested for that purpose in securities by way of 
loan, discount, or otherwise, which are from time to time, ac- 
cording to the rules of the business, reduced again to money 
and reinvested. It includes money in the hands of individuals 
employed in a similar way, invested in loans, or in securities 
for the payment of money, either as an investment of a per- 
manent character or temporarily with a view to sale or repay- 
ment and reinvestment. * * *™ * ‘This definition of mon- 
eyed capital in the hands of individuals seems to us to be the 


200 ATTORNEY GENERAL’S OPINIONS 


ideal of the law, and ample enough to embrace and secure its 
whole purpose and policy.’’ 


The term ‘‘moneyed capital’’ as used in section 5219 of the 
code is to be construed as including not only bonds, stocks, and 
money loaned, but all credits and demands of every character in 
favor of the tax paid. 


Wasson vs. 1st National Bank, 107 Ind., 206; 8 N. E., 97. 
The term does not include bank notes. 
Hunter’s Appeal, 10 Atl., 429. 
Des Moines, Iowa, 


January 17, 1912. 
R. L. Wetcu, City Solicitor, 
Knoxville, Iowa. 


Dear Sir: Yours of the 13th instant addressed to the attorney 
general has been referred to me for reply, and I will try to answer 
your several interrogatories in the order as stated by you. 

It would be difficult, if not impossible, to make a classification 
such as you eall for which might be adhered to with any degree of 
certainty, for the reason that an item might be moneys and credits 
in the hands of one person and moneyed capital in the hands of 
another. To illustrate: Suppose I sell my farm for ten thousand 
dollars and take a mortgage back, securing part of the purchase 
price, and intend simply to hold the note and mortgage, not for 
the purpose of negotiating the note and re-investing the money re- 
ceived therefor in other like securities, which in turn would again 
be sold and the proceeds invested. This note in my hands would 
be a eredit, within the meaning of code section 1310, as amended by 
this chapter, yet if I should sell this same note to a bank or other 
institution which made a business of buying and selling negotiable 
instruments and made use of other moneyed capital in so doing, 
this note would constitute moneyed capital, within the meaning of 
chapter 63, and should be taxed in accordance with section 5 
thereof. 

You will notice that the legislature in the act in question used 
the term ‘‘moneyed capital’’ as within the meaning of said sec- 
tion of the United States statutes, and there is no atfempt in the 
act itself to point out just what is included therein, and we are, 
therefore, left to ascertain what the courts have held ‘‘moneyed 
capital’’ to be, within the meaning of said section 5219. 


ATTORNEY GENERAL’S OPINIONS 201 


In the case of Mercantile Bank vs. New York, 121 U. S8., the su- 
preme court said: 


‘‘The term ‘moneyed eapital,’ as used in section 5219, em- 
braces capital employed in national banks and capital em- 
ployea by individuals when the object of their business is the 
making of profit by the use of their moneyed capital as money ; 
but it does not include moneyed capital in the hands of cor- 
porations, even if its business is such as to make its shares 
moneyed capital when in the hands of individuals.’’ 


In the case above referred to, the court, after having reviewed 
the previous decisions, stated: 


‘‘Tt follows as a deduction from these decisions that ‘mon- 
eyed capital’ in the hands of individual citizens does not nec- 
essarily include shares of stock held by them in all corporations 
whose capital is employed, according to their respective cor- 
porate powers and privileges, in business carried on for the 
pecuniary profit of shareholders, although shares in some cor- 
porations, according to the nature of their business, may be 
such moneyed eapital. The rule and test of this difference is 
not to be found in that quality attached to shares of stock in 
corporate bodies generally whereby the certificates of owner- 
ship have a certain appearance of negotiability, so as easily to 
be transferred by delivery * * * * It does not follow, 
because these are invested in such a way as to properly to con- 
stitute moneyed capital, that the shares of stock in the cor- 
porations themselves must necessarily be within the same 
description * * * * The true test of this distinction, 
therefore, can only be found in the nature of the business in 
which the corporation is engaged.’’ 


The court also used this language, which probably is as good a 
definition as can be found: 


‘“The terms of the act of congress, therefore, include shares 
of stock or other interests owned by individuals in all enter- 
prises in which the capital employed in earrying on its busi- 
ness is money, where the object of the business is the making 
of profit by its use as money. The moneyed capital thus em- 
ployed is invested for that purpose in securities by way of 
loan, discount, or otherwise, which are from time to time, ac- 
cording to the rules of the business, reduced again to money 


202 ATTORNEY GENERAL’S OPINIONS 


and re-invested. It includes money in the hands of individuals 
employed in a similar way, invested in loans, or in securities 
for the payment of money, either as an investment of a per- 
manent character or temporarily with a view to sale or re- 
payment and re-investment. * * * * This definition of 
moneyed capital in the hands of individuals seems to us to be 
the idea of the law, and ample enough to embrace and secure 
its whole purpose and policy.’’ 


‘Ist. There is a resident of this city whose sole income is 
derived from notes and mortgages. His business consists in 
loaning his own money. Is his property taxable on the basis 
of five mills on the dollar, or on the basis of 20 per cent of its 
actual value ?’’ 


This item should be taxed on the basis of 20 per cent of its actual 
value, as provided by section 5 of the act under consideration. 


‘‘Ond. There is a resident of this city engaged in the mer- 
chandise business, who has three thousand dollars loaned out 
at interest. Is it taxable on the basis of five mills, or on the 
basis of 20 per cent of its actual value ?’’ 


This item, assuming it to be an incidental loan and that the 
holder is not engaged in the business of buying, selling and deal- 
ing in securities so as to make his money thus invested moneyed 
capital, within the meaning of the term as hereinbefore defined, 
should be taxed on the five mill basis, as provided in section 1 of 
the act. 


‘‘drd. A resident of this city has a checking deposit of one 
thousand dollars and also a time certificate drawing 4 per cent 
interest in a local private bank. Are the checking account, 
and the certificate to be taxed on the same basis, and which 
method of taxation prevails?’’ 


On the same assumption that these items are incidental only, 
that the party is not generally engaged in such a business as would 
make these items moneyed capital, as heretofore explained, both 
the checking account and the time deposit should be taxed on the. 
five mill basis, 

Yours very truly, 
(Signed) C. A, RossBins, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 203 


Extracts of opinions of Attorney General pertaining to county 
attorney’s office. 


‘1. Is the county attorney entitled to a fee for judgment 
rendered and collected in a suit to enforce an assessment of 
omitted property made by the county treasurer ? 

“2. Is the county attorney entitled to a fee for a judg- 
ment rendered and collected where suit was brought by him 
to collect the expense of insane patients which had previously 
been paid by the county ? 

*°3. Where suit is brought by county attorney on the bond 
of a defaulting official, is he entitled to a fee on the amount 
recovered, or under code section 308 is the county attorney 
entitled to a fee of ten per cent on all judgments in favor of 
the county, in addition to his salary, or only on fines?’’ 


Each of these questions should be answered in the negative. Code 
supplement section 308 after fixing the compensation of county 
attorneys according to the population of the county provides as 
follows: 


‘Tn addition to the salary above provided he shall receive 
the fees as now allowed to attorneys for suits on written in- 
struments where judgment is obtained, for all fines collected 
where he appears for the state but not otherwise, and for 
school fund mortgages foreclosed.’’ 


By code section 3869 it is provided: 


‘“When judgment is recovered upon a written contract con- 
taining an agreement to pay an attorney’s fee the court shall 
allow and tax as part of the costs on the first $200 or fraction 
thereof, ten per cent, on the excess of $200 to $500, five per 
cent; on the excess of $500 to $1,000, three per cent; and on 
all sums in excess of $1,000, one per cent. If action is com- 
menced and the claim paid off before return day, the amount 
shall be one-half of the sums above provided; and if it is paid 
after return day but before judgment, three-fourths of said 
sum.”’ 


The phrase used in code supplement section 308 ‘‘where judg- 
ment is obtained’’ has reference to the higher fee fixed where 
judgment is obtained rather than the lower fee provided where 
settlement is made before return day or after return day and be- 
fore judgment as specified in section 3869, and the only cases in 


204 ATTORNEY GENERAL’S OPINIONS 


which these fees are to be allowed are as specified in the other 
section for all fines collected and school fund mortgages foreclosed, 
and it is not intended that the fee shall be allowed in other cases 
where judgment is obtained. The compensation for such services 
is included in the general salary of the county attorney. See 
Dubuque Co. vs. Fitzpatrick, 144 Iowa, 86. ; 


‘‘4. Should the county attorney’s per cent of fines be de- 
ducted from the fines or paid out of the general county fund ?’’ 


This percentage to be paid the county attorney should be paid 
from the general fund and not from the proceeds of the fines 
collected. The constitution requires the clear proceeds of the fines 
collected to be turned into the school fund. See Constitution of 
Iowa, section 4, of subdivision 2 of article 1X, and Woodward vs. 
Gregg, 3 G. Green, 287, where the exact question was passed upon 
by our supreme court and the conclusion reached being against the 
right of deducting the attorney’s fees from the funds collected. 


JUSTICE OF THE PEACE, 


‘‘Are marriage fees of the justices of the peace to be taken 
into consideration with fees set out in section 4597 ?’’ 


This department has heretofore passed upon this question and 
held that inasmuch as the right of a justice of the peace to 
exact a fee for the performance of the marriage ceremony de- 
pends upon the existence of his official position that the fee is 
therefore received by him in his official capacity and must be ac- 
counted for in the same manner as other fees received by him 
where he is on a salary basis. See code section 3152 fixing the 
amount of such fee, and code supplement section 4600-a requiring 
such fees to be accounted for. 


March 28, 1914. 
JOHN L. BLEAKLY, 


Auditor of State. 


DeEAR Sir: With reference to the proposition contained in the 
letter of Mr. M. S. Odle addressed to you of date March 13th will 
say that in my judgment the rule announced in my letter to you 
of date October 1, 1913, is not necessarily confined to fines imposed 
In eriminal prosecutions. 


ATTORNEY GENERAL’S OPINIONS 205 


The language of our constitution material to be considered is 
found in section 4 of article IX and reads as follows: 


‘“Money which may have been or shall be paid by persons 
as an equivalent for exemption from military duty and the 
clear proceeds of all fines collected in the several counties for 
any breach of the penal laws shall be exclusively applied in 
the several counties in which such money is paid or fine col- 
lected among the several school districts of said counties,’’ ete. 


By code section 2382 the sale or keeping for sale of intoxicating 
liquors is made an indictable offense, and there is no question but 
that this law is a penal law. 

By section 2384 the sale of liquors from any building, erection 
or place is made a nuisance. This is also a penal law. 

By section 2405 the remedy of injunction is applied and where 
One against whom the injunction has been rendered violates the 
terms thereof, he is made guilty of contempt and a fine is imposed. 
This is certainly a penal law. At any rate the fine imposed for 
contempt is collected for a violation of the penal law because the 
injunction has not issued in the first instance, but for the fact 
of the defendant having violated the other penal laws referred to 
by selling or keeping for sale liquors within his place. 

The case of McConkie vs. Landt, 126 Iowa, 317, referred to by 
Mr. Odle, is probably an authority for the proposition that con- 
tempt proceeding is not a criminal case, but even though that may 
be true, the fine is nevertheless imposed for a violation of the 
penal law. I call your attention to the additional authorities found 
under this subject, Penal Laws, in Words and Phrases, vol. 6, at 
pages 5270-5271. JI can see no reason why it should make any 
difference to Mr. Odle for he would be entitled to the hundred 
dollars from the general fund of the county but in my judgment he 
is not entitled to the same from the proceeds of the fine collected. 

I am sending you this letter in duplicate in order that you may 
forward a copy to Mr. Odle if you so desire. 


Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


206 ATTORNEY GENERAL’S OPINIONS 


October 29, 1913. 


Hon. JOHN L. BLEAKLEY, Auditor of State, 
State House. 


DeEAR Sir: Your first question is: 


‘‘Has the board of supervisors a legal right to allow to a 
county officer direct a specified amount for compensation of 
deputy or other clerk hire, or must the amount be allowed 
direct to the person performing the service?’’ 


This question should be answered in the negative except as to 
sheriffs. Under code supplement section 510-b the salary of the 
chief deputy is to be paid by the sheriff out of the compensation 
allowed him under section 510-a. 

Prior to the enactment of chapter 43, acts of the thirty-fifth gen- 
eral assembly, the board of supervisors was authorized by code 
supplement section 479 in counties of over twenty-five thousand to 
allow such additional compensation to the auditor as it deemed 
reasonable. However, by the last paragraph or subdivision of 
chapter 438 this additional compensation is now limited to the 
deputies and clerks and is no longer allowed direct to the auditor. 


Your second question is: 


‘“Has the board of supervisors a legal right to allow direct 
to the county auditor a certain amount in addition to his 
salary for drainage work, or may they simply allow the 
auditor extra help on this account?’’ 


This matter is governed by chapter 121, acts of the thirty-third 
general assembly, the material portion of which reads as follows: 


‘“Whenever a levee or drainage district or districts shall be 
petitioned for or established in any county, the board of super- 
visors shall furnish such additional help, as shall be just and 
reasonable, to be paid by the county.’’ 


Hence, it follows that the pay should go to the help and not to 
the county auditor. 


ATTORNEY GENERAL’S OPINIONS 207 


February 11, 1914. 
JOHN L. BLEAKLY, 


Auditor of State. 


DeE4R Sir: In yours of the 5th instant you eall attention to the 
following court rule which is being operated under in some of the 
counties of the state, to-wit: 


‘‘The clerk in each county is hereby appointed ‘referee in 
probate’ for the purpose of examining all reports in probate 
requiring the action of the court, and he shall be allowed for 
such service, to be taxed as a part of the costs, a fee of $1.50 
in estates of $500.00 or less, a fee of $3.00 in estates of less 
than $5,000.00, and over $500.00, and a fee of $7.50 in all es- 
tates of $5,000.00 or in excess of $5,000.00, and as a part of 
his duty the clerk shall make a report in writing to the court 
of the condition of each estate to be acted upon, and as a 
recommendation of what ought to be done with the report 
considered.’’ 


You then enquire: 


‘*In ease the clerk is appointed referee in probate by the 
judge of the district court and his fees for the same are fixed 
by the court, is the clerk entitled to retain these fees in addi- 
tion to his salary ?”’ 


In my judgment this question should be answered in the nega- 
tive. These fees are certainly received by the clerk in his official 
capacity and not as an individual, and the rule is that all fees so 
received should be accounted for. Our supreme court so held in 
the case of Moore vs. Mahaska County, 61 Iowa, 177. 

However code section 297 provides: ‘‘The board of supervisors 
may in addition to the salary fixed for clerks, allow them out of 
the probate fees as additional compensation an amount not ex- 
ceeding $300.’’ 

Under this provision the board of supervisors would have the 
power to allow any clerk additional compensation up to the amount 
of $300.00 each year from the ‘‘probate fees’’ which term would 
include any fees collected by the clerk as referee in probate under 
such rule of court, 

Yours truly, 


208 ATTORNEY GENERAL’S OPINIONS 


December 20, 1913. 


JOHN L. BLEAKLY, Auditor of State, 
State House. 
DeEAR Sir: Your several letters of recent date addressed to the 
attorney general have been referred to me for reply. 
Your first question is: 
‘“ When, on serving a warrant, the sheriff takes a conveyance 


out and back, which conveyance he charges to the county as a 
livery expense item, can he also charge mileage for himself?’’ 


In my judgment the sheriff is not entitled to charge mileage, ex- 
cept in certain special cases, where he is authorized to procure a 
conveyance and except in such cases he would not be authorized 
to charge for livery. 

Your second question is: 

‘‘In case the warrant is issued by a justice of the peace 
could the sheriff charge for livery ?’’ 


In reply to this question will say that in my judgment the sheriff 
is entitled to mileage only and not to livery. 


October 17, 19138. 


JOHN L. BuEaKty, Auditor of State, 
State House. 


DEAR Sir: Yours of the 14th instant, addressed to the attorney 
general, has been referred to me for reply. 
Your first question as stated by you is: 
‘‘When a county officer’s salary is fixed by statute accord- 


ing to population of the county, which census should govern, 
the state census of 1905, or government census of 1910?”’ 


By chapter 3 of the acts of the thirty-fourth general assembly 
provision is made for the publication by the secretary of state of 


ATTORNEY GENERAL’S OPINIONS 209 


the general census taken by the national government. Said chap- 
ter further provides: 


‘“Wherever in the code or any supplement to the code or 
any copy of the session laws prior to this date the population 
of any county, city or town is referred to it shall be deter- 
“mined by the last certified or certified and published official 
census whether the same be state or national.’’ 


Hence it follows that if the secretary of state has complied with 
the provisions of chapter 3 and published that portion of the fed- 
eral census of 1910 giving the population of counties the compensa- 
tion of the county officer where such compensation is based upon 
population of the county should be determined by the federal cen- 
sus of 1910; otherwise by the state census of 1905. Federal census 
of 1910 was officially published by the secretary of state on March 
ray ned ES Wi 


April 7, 1914. 


JOHN L. BLEAKLY, Auditor of State, 
State House. 


Dear Sir: Replying to the letter of Mr. R. A. Fife under date 
of March 24th, 1914, will say that in my judgment Code section 
2577 which requires a physician to file his certificate ‘‘for record 
in the office of the recorder of the county in which he resides’’ and 
which requires the recorder to ‘‘record same in book provided for 
the purpose,’’ requires more than a mere index showing the filing 
of the same for record, and in my judgment requires the same to be 
copied at length upon the record books the same as any other in- 
strument which is required to be recorded at length. 

I am enclosing you a duplheate of this letter in order that same 
may be forwarded to Mr. Fife. 


Yours truly, 
C. A. Rossins, 
Assistant Attorney General, 


14 


210 ATTORNEY GENERAL’S OPINIONS | 


| March 11, 1914. 
JOHN L. BueaKiy, Auditor of State, 


State House. 


Dear Sir: Replying to yours of recent date, addressed to the 
attorney general, concerning the transfer of deeds, patents and 
other instruments which do not unconditionally convey real estate, 
will say that these are not required to be transferred, and it is for 
the auditor to determine in the first instance whether or not the 
conveyances are such as need to be transferred. If he should note 
on the back of any instrument the fact that it was not one that was 
required to be transferred then the recorder would be warranted 
in recording the same without its having been transferred. 


Yours truly .- 
C. A. RosBins, 
Assistant Attorney General. 


Des Moines, Iowa. 
January 17, 1908. 
Hon. B. F. Carrot, | 
Auditor of State. 


Sir: I beg to acknowledge the receipt of your letter of Janu- 
ary 16th in which you ask: 


‘‘Wirst. Under the provisions of the primary election law 
for the payment of expenses of said primary election, should 
the police officers and challengers at said primary election be 
allowed pay for their services? 

‘“Second. Can the board of supervisors charge for their 
services 1n canvassing the returns of said primary election to 
the primary election account, provided they do not charge the 
county for the same time and services? 

‘‘Third. Does the provision in the primary law that the 
candidates for office in a smaller subdivision than a county 
need not file nomination papers also apply to candidates for 
members of the board of supervisors in counties that have 
been divided into supervisor districts?’’ 


In response thereto I submit the following: 


First. Section 1 of chapter 51, acts of the 32d general assembly, 
providing for primary elections makes the provisions of chapters 


ATTORNEY GENERAL’S OPINIONS 211 


3 and 4 of title 6 of the code, in so far as applicable, apply to such 
elections. 

Section 1125 of chapter 38, title 6 of the code, makes provision for 
the appointment of special police officers to attend the voting places 
for the purpose of preserving order, and in my judgment, under 
these provisions such police officers are entitled to pay for their 
services, but I do not think it was the intention of the legislature 
to authorize payment for the services of the challengers provided 
for in section 9 of the primary act. 

Second. The compensation of the board of supervisors for serv- 
ices in canvassing the returns of the primary election and in per- 
forming such other services as are required by the act under con- 


sideration, should be paid in the usual way and not charged to the 
primary election account. 


Third. Candidates for members of the board of supervisors in 
counties that have been divided into supervisor districts are not 
required to file nomination papers. 


Respectfully, 
H. W. BYErs, 
Attorney General of Iowa. 


November 12, 1913. 


JOHN L. BLEAKLY, Auditor of State, 
State House. 


DEAR Sir: In response to recent request of your Mr. Wall as to 
whether or not a woman is qualified to hold the office of deputy 
clerk of the district court will say that without giving the matter 
any independent investigation I find that former Attorney Gen- 
eral Mullen investigated the question in January, 1902, and reached 
the conclusion that deputy county officers are not required to be 
qualified electors and that hence the office might be held by a 
woman. I have examined some of the cases he cites and they seem 
to sustain the doctrine announced by au in his opinion, copy of 
which I herewith enclose. 

Yours truly, 
C. A. RoBBIns, 
- Assistant Attorney General. 


212 ATTORNEY GENERAL’S OPINIONS 


Des Moines, January 31, 1902. 


Hon. OLIVER GORDEN, 
Forest City, Iowa. 


Dear Sir: Permit me to acknowledge the receipt of your favor 
of the 30th instant. 

The matter concerning which you write is not one upon which 
I am required to give an official opinion, but as you have written 
me for such information as I am able to furnish concerning, I will 
reply briefly : 

The clerk of the courts of Iowa is a ministerial officer, except in 
certain instances where he is required to act in a judicial capacity. 

Section 298 of the code gives him the power to select his deputy 
and clerks. He and his surety are responsible for their acts. He 
has the authority under this section to appoint whomsoever he 
pleases. The person appointed as his deputy acts for him; or, in 
other words, he acts through such deputy. 

His choice is not confined to any race, sex, color, age or previous 
condition of servitude. The deputy appointed by him is not a 
county officer, and it 1s not necessary that he or she should have 
the qualifications of an elector. 

This question has been before several courts, and the doctrine 
as above stated has met with approbation. 

See Moore vs. Graves, 3 N. H., 146; Jeffries vs. Harrington, 11 
Colo., 191; Wilson vs. Newton, 87 Mich., 498. The last case cited 
being directly in point. 


Very truly yours, 
Cuas. W. MULLAN, 
Attorney General. 


Des Moines, February 8, 1907. 
O. HENSHAW, Esq., 


Richland, Ia. 


Dear Sir: I have your letter of yesterday referring to prop- 
erty exempt from taxation, and note you say that you do not agree 
with some letter I have written with reference to the exemption of 
the rural route drivers teams, and also note that you say your 
county attorney disagrees with me. Replying I have to say, that 
you are entirely right in saying that paragraph five of section 
1304 limits the exemption to teamsters or draymen’s teams, so the 


ATTORNEY GENERAL’S OPINIONS 213 


question turns on the definition of a teamster. I know of no better 
definition than that given by Webster which is ‘‘One who drives 
a team.’’ Now if the rural route man drives a team in his busi- 
ness and makes his living in that way, it seems to me he comes 
clearly within the provision of the statute, and his team would be 
exempt from taxation. A rural mail driver is just as much of a 
teamster as the man who hauls freight to and from the depot, or 
the man who gathers up and hauls milk to the creamery, or does 
any other kind of work in which he uses a team. This same para- 
graph exempts the tools of a mechanic, and the supreme court in 
Snuth & Fund vs. Osborn et al, 53 lowa, page 474, holds, that the 
printing press and materials of a printer not exceeding $500.00 in 
value are exempt from taxation. It is so held because a printer 
is a mechanic, just so a rural mail driver is a teamster if he carries 
and delivers his mail with a team, and if he makes his living in 
that way his team is exempt. 

I have taken the trouble to write you thus fully not because I 
desire to have any controversy with you about the question in- 
volved, but because I assume you desire to satisfy yourself as to 
what the law is upon the question for the purpose of properly per- 
forming your duties as assessor. 


Very respectfully, 
(Signed) H. W. ByYErs, 
Attorney General. 


December 27, 1911. 
Mr. H. B. GROVEs, 


Sioux City, Iowa. 


DEAR Sir: Yours of the 21st instant addressed to the attorney 
general has, on account of his absence from the office, been referred 
to me for reply. 

Your question, briefly stated, is whether or not, under the new 
automobile tax law, machines on hand with dealers on January first, 
the time of assessment, should be assessed in view of the fact that 
the machines may soon be sold to the original purchaser and he 
becomes liable for the tax, and so on, as often as the car changes 
hands. 

You will understand that this department is not authorized to 
give official opinions with reference to private matters. However, 
I may say in a personal way that this law has been construed by 


214 ATTORNEY GENERAL’S OPINIONS 


this department in such a way as to give the dealer the option of 
listing such machines as he has on hands January first and having 
the same assessed under the general law, or he may pay the annual 
registration fee on each of his machines and on each machine which 
he may purchase during the year, instead of paying the dealer’s 
license fee, and in the last mentioned case, where the dealer would 
sell to the purchaser, a transfer could be made from the dealer to 
the purchaser upon payment of a transfer fee of $1.00, and the 
purchaser in such event would not be liable for the annual fee for 
that year; and this matter could be taken into account by the 
dealer in the sale of the machine; the purchaser being compelled 
to have a license before he could operate a machine would be as 
willing to pay the dealer for the license as he would the state, and 
thus the dealer would only be out the transfer fee of $1.00 on each 
machine, assuming that he could collect from the purchaser the full 
amount of the license fee that the purchaser would otherwise be 
required to pay to the state. And if the dealer would cause each 
machine to be registered under a separate number, he would have 
no occasion to have the dealer’s number or registration, and would 
not be liable for the license fee. 

The theory of the law is to collect one license fee for each year, 
and if the machine is sold a second or third time in a year, only 
one license fee is required in case the transfer fee of $1.00 is paid 
at the time of each transfer and the proper return made, as pro- 
vided by section 10, chapter 72, acts of the 34th general assembly. 


Yours very truly, 
C. A. RoBBINs, 
Assistant Attorney General. 


February 16, 1912. 
Mr. M. P. Witson, 


819 Fourth Ave., 
Clinton, Iowa. 


Dear Siz: Yours of the 9th instant addressed to the attorney 
general has been referred to me for reply. 

You call attention to the fact that the city council and the ine 
board of supervisors have by some order attempted to exempt from 
taxation for city and county purposes the Clinton Brewery Com- 
pany, and you ask what the duties of the county treasurer are in 


ATTORNEY GENERAL’S OPINIONS 215 


connection with such a case, and whether or not it is up to him to 
take action to collect the lawful taxes for the current year, as well 
as for previous years. You also ask what action should or could 
a citizen take in the ease. 

While this department is not authorized to give official opinions 
upon such matters as this, yet in the opinion of the writer there 
is no authority in law for such an exemption being made, and that 
it would be the duty of the city council and the board of super- 
visors, as well as the city treasurer and the county attorney, to 
see to it that these taxes are collected; and it is doubtless true that 
the proper officers might be compelled by mandamus proceedings 
to take the necessary steps to collect this tax. It is equally true 
that if the proper officers fail to collect this tax, their bondsmen 
would be liable for the damage sustained by reason thereof. 

Their are various steps that might be taken by an interested 
citizen to bring about the collection of this tax. I would suggest, 
however, that the first step would be to serve a written notice on 
the city council, the members of the board of supervisors, the 
county treasurer and the county attorney, calling their attention to 
the illegality of the pracice, and demanding that they proceed to 
collect the tax. 

Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


January 20, 1914. 


Hon. Joun L. BuEaKuiy, Auditor of State, 
State House. 


DEAR Sir: Yours of the 19th instant addressed to the attorney 
general has been referred to me for reply. 


The question as stated by you is: 


‘*Under section 490 of the code, should the county treasurer 
deduct three-fourths of one per cent from special assessment, 
taxes levied by the city against abutting property to pay 
bonds issued to pay for sewer or street improvements as pro: 
vided in sections 842 to 847 of the code?”’ | 


216 ATTORNEY GENERAL’S OPINIONS 


Code supplement section 490 to which you refer provides: 


‘‘Hach county treasurer shall receive for his services the 
following compensation, three-fourths of one per cent of all 
money collected by him as ase and due any city or town, 
to be paid out of the same.’ 


The question then arises reer or not the proceeds of special 
assessments made under code sections 842 to 847, inclusive, would 
be taxes due the city or town within the meaning of section 490 
above quoted. It has been frequently held by our supreme court 
that the obligations issued in the form of bonds under this section 
and payable from the proceeds of special assessments do not con- 
stitute an indebtedness of the city or town. How then can the 
proceeds of such special assessments be said to be a tax due the 
city or town? In my judgment your question should be answered 


in the negative. 
Yours truly, 
C. A. ROBBINS, 


Assistant Attorney General. 


December 3, 1912. 
O. W. WitTHAM, County Attorney, 


Greenfield, Iowa. 


Dear Sir: Replying to yours of the 8th ult. addressed to the 
attorney general, relative to exemption from city tax of personal 
property located on agricultural lands within an incorporated city 
or town, will say that I have given the question which you suggest 
some investigation but have been unable to find any decisions cover- 
ing the questions. 

In view of the fact that the section, to which you eall attention, 
616, makes an exception in favor of farm lands located within the 
corporate limits from the general rule of taxation, 1 am inclined 
to the view that the exception should not be enlarged so as to in- 
clude stock and other property located upon the lands. I eall 
your attention to the general rule, as stated in 28th Cyc., page 1678, 
and cases there cited. If it had been the intention of the legisla- 
ture to exempt the personal property located on the land, as well. 
as the land, it would doubtless have been stated in this section. 


Yours truly, 
(Signed) C. A. Rossing, 
Assistant Attorney General.. 


ATTORNEY GENERAL’S OPINIONS 217 


June 19, 1912. 
Mr. E. D. BEEMAN, 
526-28 Bank and Insurance Bldg., 
Dubuque, Iowa. 


DEAR Sir: - Yours of the 18th instant addressed to the attorney 
general has been referred to me for reply. 

Your inquiry has reference to the question as to whether or not 
land contracts covering lands in the state of North Dakota held by 
you while a resident of Iowa are taxable in this state. 

This department is not at liberty to give official opinions with 
reference to a private matter of this sort, and you should consult 
local counsel and be governed by their advice. I may say, how- 
ever, In a personal way, that our supreme court has held that 
where the land contract is a mutually obligatory contract binding 
the purchaser to take the land and the seller to convey the same, 
as distinguished from a mere option contract which binds the seller 
to convey in the event the purchaser exercises the option to take 
the land, are taxable as moneys and eredits in the hands of the 
seller of the land. Hence, it would go without saying that where 
your obligation is out for land purchased by you, you would have 
the right to deduct that obligation from any obligations that were 
taxable against you on account of land sold by you, and these con- 
tracts held by residents of this state are taxable without reference 
to the location of the land covered by the contract. 


Yours very truly, 
C. A. Ropsins, 
Assistant Attorney General. 


‘*Has the county auditor, under section 1385-a-b-c, code sup- 
plement, the authority in making up his tax list to correct this 
error in assessment or must it stand for this year having been 
passed upon by the local board ?’’ 


Where the county auditor is not required to exercise any judg- 
ment in fixing the valuation of the property, he would have the 
right under the section referred to to strike out any deduction un- 
lawfully allowed, and make the computation the same as though 
such deduction had not been made, and to this extent he would 
have the right to make the correction referred to. 


218 ATTORNEY GENERAL’S OPINIONS 


‘“‘The Farmers Co-operative Produce Company of Des 
Moines have a station in Tipton, Iowa, with an agent conduct- 
ing the business of buying and shipping cream and other 
produce, the question is, should the local plant be assessed in 
Tipton on the average business as merchants, under section 
1314 to -18, or does such business come under the federal tax 
laws and is taken care of in their assessment given from their 
home office in Des Moines?”’ 


In my judgment such concerns should be taxed under code sec- 
tions 1314 to 13818 and that the federal tax laws would have nothing 
to do with the question. 


Your ninth question is as follows: 


‘‘Have the board of supervisors the authority to allow bills 
for services of deputy county superintendent rendered between 
July 4th last and the date the county board of education met 
and fixed the salary of such deputy ?”’ 


This question should be answered in the affirmative. 
Your tenth question is as follows: 


‘Under section 2742, code supplement, may the board of 
supervisors allow the county superintendent additional com- 
pensation to 1915 when the new law fixing such salary takes 
effect?’’ 


In my judgment this additional compensation may be allowed 
both before and after 1915, as section 2 of chapter 107 also con- 
tains the provision: 


‘‘ And the board of supervisors may allow him such further 
sum by way of compensation as may be just and proper.’’ 


Yours very truly, 
C. A. RoBBINs, 
Assistant Attorney General. 


‘Is the county auditor required to publish tabulated re- 
turns of the primary election setting out number of votes re- 
ceived by each candidate ?’’ 


This question should be answered in the negative. By section 
11 of chapter 69, acts of the thirty-third general assembly it is 
provided : 


ATTORNEY GENERAL’S OPINIONS 219 


‘‘The published proceedings of the board of supervisors as 
a canvassing board shall contain only a brief statement of the 
names of the candidates nominated by the electors of any 
county or subdivision thereof under the title of the office for 
which they are nominated, and a statement of the title of the 
office for which they are nominated, and a statement of the 
title of the county offices, if any, for which no nomination was 
made by any political party participating in the primary elec- 
tion for the failure of any one of its candidates for any office 
to receive thirty-five per centum of all the votes cast by the 
party for such office.’’ 


Hence it follows that this brief statement is all that is required 
to be published and that the tabulated returns need not be pub- 
lished. See 146 Ia., page 109, for returns of general election. 


Yours truly, 


C. A. Rossing, 
Assistant Attorney General. 


Extracts from opinions of attorney general of Iowa pertaining to 
duties of county officers. 


TREASURER’S OFFICE. 


‘1. Is the county entitled to charge the same (three- 
fourths of one per cent) for the township drag fund as it is 
for the township road fund ?’’ 


This question should be answered in the affirmative. 


‘*2. May the treasurer retain all fees collected up to his 

- full salary even though he collect the same in three or four 

months, or can he only retain one-twelfth of his salary each 
month ?’’ 


In my judgment the county treasurer may retain all fees col- 
lected by him until his maximum annual salary has been received 
and thereafter at all times when he is required to account to the 
board of supervisors he should account for the excess of fees re- 
ceived over and above his salary as provided by code section 492. 
In the event of a vacancy by death, resignation or otherwise during 
the year he should be required to account for all fees received over 
and above the salary due for that portion of the year during which 
he served, 


220 ATTORNEY GENERAL’S OPINIONS 


‘*3. To whom does interest over and above that provided 
for by special assessment certificates go, when one per cent 
per month is collected? Section 841 provides that they shall 
not bear more than 6 per cent per annum; see section 827. 
Section 791-b of the code supplement provides that the assess- 
ment shall after delinquency bear the same rate of interest 
and the same penalties as other taxes.’’ 


To the holder of the special assessment certificate. 


‘‘4. What interest is due on taxes paid in April? See sec- 
tion 1413. In some counties they are charging two per cent 
and in others only one. If the taxes are paid March 31st 
there is no penalty, but if the payment is made April Ist is the 
rate one per cent or two?’’ 


Jude DeGraff, formerly of this department, ruled that the pen- 
alty of one per cent per month only accrued at the end of the 
month, hence in the case you suppose the penalty would be one 
per cent instead of two. His ruling is still adhered to by this 
department. 

‘*5. Domestic Animal Warrants. Can the treasurer pay 
these warrants after January 10th, or July 10th (section 458-d, 
supplement), or does the provision that the payments shall be 
made on or before the 10th of these months mean that the 
treasurer is given until the tenth of the month to determine 
the per cent that can be paid on each warrant in case they can- 
not be paid in full?’’ 


In my judgment the provision requiring payment on or before 
the 10th days of January and July respectively is directory, not 
mandatory, and that the payments may be made thereafter and 
these dates are simply fixed as a basis to enable the treasurer to 
determine whether or not all claims can be paid in full from the 
funds received between such dates. 


‘6. Does the limit of compensation of county treasurer’s 
deputy in section 491 apply to deputy only or to deputy and 
extra help? In other words, is the $900 a year the limit al- 
lowed to deputy and extra help?’’ 


In my judgment the limitation only applies to the salary or com-. 
pensation to be paid the deputy or extra help where there is no 
regular deputy, but in cases where a regular deputy has been ap- 
pointed his salary would not be affected thereby and the board 


ATTORNEY GENERAL’S OPINIONS 221 


would be without power to employ clerk hire except in cases where 
such county is doing a drainage business in amount requiring addi- 
tional help. See chapters 44 and 45, acts of the thirty-fifth general 
assembly. 


‘*7. Should the bond of a depository bank given to a county 
treasurer to secure county deposits be renewed upon the re- 
election of the treasurer or will the old bond hold good so long 
as the treasurer to whom it was originally given remains in 
office?’’ - 


Unless the bond specifies that it is for a fixed period of time, it 
would doubtless be sufficient during the term or terms of office of 
the treasurer to whom given, but the better practice would be to 
require new bonds for each term of the county treasurer or have 
the bond recite that it is to secure deposits made by the treasurer 
during that term or any subsequent term during which he may 
held the office. 


‘*8. May the boards of supervisors allow bills to banks for 
collecting tax for county treasurer, as extra clerk hire to the 
treasurer ?’’ 


In my judgment this question should be answered in the nega- 
tive. The law contemplates that the work of the treasurer’s office 
should be performed in that office and does not contemplate the 
payment of extra compensation or clerk hire except in the follow- 
ing cases: 

Where no regular deputy has been appointed but on account of 
the pressure of business in his office the treasurere is compelled 
temporarily to employ an assistant; 

And in counties of 25,000 population or over such clerk hire may 
be allowed in addition to the salary of the regular deputy as the 
board of supervisors may deem reasonable. 


‘*9. Does the statute of limitations run against the county 
in the collection of tax more than five years delinquent ?”’ 


This question should be answered in the negative with the quali- 
fication however that where the state or county brings a suit in 
court to recover a judgment for the amount of delinquent taxes, 
then the statute of limitations would apply in the same manner as 
though the suit were brought by an individual; but where instead 
of bringing such suit the treasurer or other tax collecting officer 
proceeds to sell property liable for the tax under a distress war- 


222 ATTORNEY GENERAL’S OPINIONS | 


rant then the statute of limitations does not apply. See 37 Cye., at 
page 1304, and State vs. Webber, Judge, 37 N. W., 949. 


‘*10. Should interest on drainage assessments be charged 
in case payments are made one-third at time of filing agree- 
ment, one-third when half completed and one-third when im- 
provement has been accepted by the board, as provided in 
chapter 87, section 5, 34th G. A.?’’ 


In my judgment this question should be answered in the affirma- 
tive. Code supplement section 13889-a-12, as amendéd by section 
5, chapter 87, acts of the thirty-fourth general assembly reads in 
part as follows: 


‘* And all installments of the tax shall be levied at that time, 
and shall bear interest at six per cent per annum from that 
date; provided that if the owner of any parcel of land, lot or 
premises against which any such levy shall have been made 
and certified, shall, within twenty days from the date of such 
assessment, promise and agree in writing filed in the office of 

the county auditor that in consideration of his having the right 
to pay his assessments in installments he will not make any 
objection of illegality or irregularity as to his assessment of 
benefits or levy of such taxes upon or against his property, but 
will pay said assessment, then said taxes levied against said 
land, lot or premises of such owner shall be payable as follows: 
one-third (1-3) of the amount of said assessment at the time 
of filing the above agreement; one-third (1-3) within ten (10) 
days after the engineer in charge of said drainage improve- 
ments shall file a certificate in the office of the county auditor 
that said improvement is one-half completed, and the remain- 
ing one-third (1-3) within ten (10) days after said improve- 
ment shall have been accepted by the board of supervisors, and 
if said installments are not paid as above provided, the failure 
to pay any installment shall cause the whole sum to become 
due and payable at once with interest at the rate of one per 
cent (1%) per month from the date of filing of said agree- 
ment.’’ 


In my judgment that portion of the language quoted which fol- 
lows the words ‘‘provided that if the owner of any parcel of land’’ 
has reference to the conditions which shall impose upon the tax- 
payer the higher interest at the rate of one per cent per month 
and does not operate to discharge or cancel the provision for six 


ATTORNEY GENERAL’S OPINIONS 933 


per cent interest above quoted, but that such six per cent interest 
is to be payable in the event the higher rate does not, by the action 
of the taxpayer, become payable. 


COUNTY AUDITOR’S OFFICE. 


‘*1. Must all bills allowed by the board of supervisors ‘be 
entered in journal of board or minute book? (Section 442.) 
Or can minute book simply recite ‘Bills were allowed (or dis- 
allowed) as endorsed on each’ or some reference to bills 
allowed ?”’ 


This question should be answered in the affirmative. 


‘2. Does section 616 apply to lands of over 10 acres in 
any city or town? Or only to extensions under section 615? 
Would it apply to lands in an original town or to extensions 
made under the provisions of section 617?’’ 


Code section 616 does not apply to lands which are included with- 
in the original corporate limits of a city or town but only applies 
where the limits have been extended after the original incorpo- 
ration. 


See Perkins vs. Burlington, T7 Iowa, 553. 


‘*3. May county auditors draw warrants for witness fees 
on certificate of clerk of district court before the board of 
supervisors passes on these certificates? Sections 4661 and 
471.’’ 


This interrogatory should be answered in the negative. 


‘‘4. Must the auditor or clerk charge fee for taking ac- 
knowledgments and administering oaths, or is it optional?’’ 


The auditor and clerk being authorized by law to take acknowl- 
edgments and administer oaths act in their official capacity in 
taking the same and should collect the statutory fees therefor and 
account for the same. In my judgment, however, this should not 
be construed to authorize the clerk to make a charge for administer- 
ing an oath in any proceeding pending in his court, nor the auditor 
to make a like charge for administering an oath in any matter 
pending before the board of supervisors but the fee for administer- 
ing an oath should only be collected when a written oath is signed 


994 ATTORNEY GENERAL’S OPINIONS 


and certified to under the seal of the officer. See Board of Com- 
missioners vs. Dickey, 90 N. W., 775. 


‘5. In deducting value of real estate from value of bank 
or corporation stock to arrive at actual value of stock which 
value of real estate should be used, the value placed on same 

’ by assessor or the value at which such real estate is carried 
on the books of the corporation ?’’ 


In arriving at the deduction to be made on account of real es- 
tate owned by a bank or corporation being assessed neither the 
value of the land as fixed by the assessor nor the value of the real 
estate as carried on the books of the corporation should be taken, 
but the provisions of section 4, chapter 63 of the acts of the thirty- 
fourth general assembly should be followed which provides: ‘‘In 
arriving at the total value of the shares of stock of such corpora- 
tion the amount of their capital actually mvested in real estate 
owned by them * * * *_ ghall be deducted from the real value 
of such shares. ”’ 


‘6. Is a deputy county auditor having a material seal en- 
titled to charge and retain a fee for affidavits connected with 
the application for hunter’s license ?’’ 


This question should be answered in the negative. The supreme 
court of Nebraska in a similar case held that a county officer who 
had the power to take acknowledgments and who was also a notary 
public was required to account to his county for fees earned in 
taking acknowledgments even though he took same in his capacity 
as a notary public rather than in his official capacity. 22 N. W., 
353; 386 N. W., 756. 


State ex rel. Frontier County vs. Kelley, 46 N. W., 714. 


““7, What fee, if any, is the county auditor required to 
charge for the issuing a certificate to a legally authorized 
liquor dealer to show his right to receive shipments of intox- 
icating liquors from interstate carriers? 


‘‘Can the county auditor lawfully refuse to issue such cer- 
tificate to a legally authorized liquor dealer for any reason if 
such dealer tender the fee demanded ?”’ 


I know of no statute that requires the county auditor to furnish 
such a certificate as is herein referred to. Code section 2419 con- 
templates the furnishing of such a certificate by the clerk and 


ATTORNEY GENERAL’S OPINIONS 226 


doubtless he would have the right to charge a fee therefor. Hence 
it follows that the auditor is under no obligation-to issue such a 
certificate. 


‘8. Ts it legal for a county auditor to issue a warrant in 
vacation simply on a written order from one member of the 
board of supervisors, while not in session? 126 Iowa, 606.’’ 


This question should be answered in the negative. Code section 
471 provides: 


‘‘The auditor shall not sign or issue any county warrant 
except upon the recorded vote or resolution of the board of 
supervisors authorizing the same, except for jury fees, and 
every such warrant shall be numbered, and the date, amount 
and number of the same, and the name of the person to whom 
issued, shall be entered in the book to be kept by him in his 
office for the purpose.”’ 


Furthermore it has been held by our supreme court that even 
where the warrant is issued by an order of the court but without 
the vote or resolution of the board of supervisors, it is without 
authority. Polk County vs. Sherman, 99 Iowa, 60. 


‘‘9, Tf not, can the board of supervisors pass a resolution 
authorizing the auditor to issue warrants on such order? 
Would the transaction then be legal? 


‘‘Has the board of supervisors the authority, by resolution 
passed during their regular session, to authorize the auditor 
to issue warrants in vacation for any particular class of claim 
against the county ?’’ . 


In my judgment the language of the statute above quoted con- 
templates that the recorded vote or resolution of the board therein 
referred to should designate and name the person or persons to 
whom the warrant or warrants covered thereby are to be issued. 
Hence, it follows that an order of an individual member of the 
board would not be sufficient authority for the auditor to issue a 
warrant to any person designated in such order, and hence your 
second question should be answered in the negative. It also fol- 
lows that the board of supervisors is without authority to adopt or 
pass what might be termed a blanket resolution authorizing the issu- 
ance of warrants to whomsoever might have claims of a certain 
class against the county for by so doing and by passing a like reso- 


15 


226 ATTORNEY GENERAL’S OPINIONS 


lution for each class of claims the force and effect of the statute 
could be evaded. Hence it follows that your third question should 
be answered in the negative. 


Heath vs. Albrook, 123 Iowa, 559. 


EXTRACTS OF OPINIONS OF ATTORNEY GENERAL 
PERTAINING TO CLERK’S OFFICE. 


‘1, What filing fee, if any, may the clerk charge for filing 
a foreign will? Can he receive the transcript of probate pro- 
ceedings from another county or state without recording the 
same, and charging the recording fee?”’ 


The same fees as are collected in other estates. See chapter 14, 
acts of the thirty-fourth general assembly. 


‘‘2. Must the auditor or clerk charge fee for taking ac- 
knowledgments and administering oaths or is it optional ?’’ 


~The auditor and clerk being authorized by law to take acknowl- 
edgments and administer oaths act in their official capacity in 
taking the same and should collect the statutory fees therefor and 
account for the same. In my judgment, however, this should not 
be construed to authorize the clerk to make a charge for administer- 
ing an oath in any proceeding pending in his court, nor the auditor 
to make a like charge for administering an oath in any matter 
pending before the board of supervisors but the fee for administer- 
ing an oath should only be collected when a written oath is signed 
and certified to under the seal of the officer. See Board of Com- 
missioners vs. Dickey, 90 N. W., 775. 


‘*3. Should the clerk of the court retain the $3.00 fee as 
member of county insane commission or turn same over to 
county treasurer as fees of his office?’’ 


The clerk should turn over to the treasurer all fees received as 
member of the insane commission. See Moore vs. Mahaska County, 
61 Iowa, 177. 


‘4. Shall the clerk of the district court collect the fees pro- 
vided by section 296, code supplement, for naturalization or 
does the federal statute covering naturalization make impos- 
sible the collection of the fees there fixed?’’ 


ATTORNEY GENERAL’S OPINIONS 227 


Those fees were superseded by the fees fixed by the federal law, 
and should no longer be collected, but the one-half of fees which 
the U. S. law permits the clerk to retain should be accounted for 
the same as the other fees of his office. 


‘(5 Are the probate fees provided in section 296, para- 
graph 29, in lieu of all other clerk’s and court’s fees, or shall 
the clerk charge other fees also such as approving bond, record- 
ing will, deeds, ete.?”’ 


In my judgment the only fees the clerk would be authorized to 
charge in estate matters are those described in paragraph 29 of the 
code supplement section 296 as now amended by chapter 14, acts 
of the thirty-fourth general assembly, to which you refer. See also 
Rhea vs. Brewster, 130 Iowa, 729. 


‘‘6. Your attention is called to the law on complete record. 
I find some clerks claim this should be made only when re- 
quested and paid for. In this county we make a charge for 
complete record in all cases involving title to real estate as it 
is now requested very often. This would save a large amount 
of labor but it appears to me that it should be made in all 
cases whether requested or not.’’ 


In my judgment a complete record should be made ‘‘as required 
by code section 3785 as follows: ‘In cases where the title to land 
is involved and expressly settled or determmned * * * * But 
in no other case need a complete entry be made except at the re- 
quest of the party who will pay the expense of such record.’* 


‘‘7, Should complete record be made in foreclosure cases ?’’ 


Not unless the trtle to the land was involved and expressly settled 
or determined or a request was made for such complete record. 


‘*8. Should complete record be made in all law cases where 
an execution was issued and satisfied by sale of real estate?”’ 


By code section 2262 the clerk is required to ‘‘file and preserve 
in his office all papers connected with any inquest by the commis- 
sioners and properly belonging to his office, with all notices, re- 
ports and other communications; and shall keep separate books in 
which to minute the proceedings of the board, and his entries there- 
in shall be sufficiently full to show, with the papers filed, a com- 
plete record of its findings, orders and transactions.’’ In my judg- 
ment this does not require the recording of any of the papers filed 


228 ATTORNEY GENERAL’S OPINIONS 


in insanity matters. See Rule 8, page 322, code supplement, re- 
quiring a complete record of all proceedings, orders, reports, in- 
ventories, appraisements and all other matters and proceedings 
therein. 


‘‘9. On an indictment being returned into court by the 
grand jury, should the clerk issue warrant immediately or 
await the request of county attorney? In the past it has been 
ruled here, by the judge, both ways.’’ 


No bench warrant should issue on an indictment until the 
court has made the order provided for by code section 5304, and 
it only becomes the duty of the clerk to issue such warrant then 
on the application of the county attorney. See code section 5305. 


‘*10. What fee should the clerk tax in matters of guardian- 
ship ?’’ 
Substantially the same fees as are provided with reference to 
other estates. 


‘11. Should costs of probate matters be collected in ad- 
vance ?’’ 


It is impracticable to collect in advance all fees in probate. mat- 
ters although it is usual, as I am advised, to collect the minimum 
of $3.00 fee, or if the value of the estate is definitely known at 
the time of the appointment of the administrator or guardian the 
increased fee provided for in chapter 14, acts of the thirty-fourth 
general assembly. 


‘12. Why does the treasurer of state’s form of report of. 
beneficiaries and real property of administrators or executors 
fail to contain any provisions for the report of personal prop- 
erty when same is subject to collateral inheritance tax?’’ 


For the reason that section 3310 of the code requires the filing 
of such inventory and the filing of a duplicate containing the same 
matter would be unnecessary. . 


‘18. Is the clerk of courts entitled to act as member of 
insane commission and also as clerk of same and charge $3.00 
for each and retain the $3.00 as clerk as his private compen- 
sation ?’’ 


This question should be answered in the negative. The clerk 
must account for all fees received in his official capacity. 


ATTORNEY GENERAL’S OPINIONS 229 


‘‘14. Under section 296, par. 14, the clerk is authorized 
to charge fifty cents for filing and docketing transcript of 
judgment from another county or from a justice of the peace. 
In addition to this can he charge fifty cents for taxing costs, 
as per par. 10, where no new costs are taxed except the fifty 
cents filing fee?’’ 


As the question is propounded I am of the opinion that the 
same should be answered in the negative, but as I understand the 
practice throughout the state it is for the clerk to enter upon his 
docket an itemized statement of the costs due the various parties, 
witnesses, officers, etc., in substantially the same manner as such 
costs are taxed in a case originally brought in his court, and where 


such a record of the costs is extended by the clerk I am of the 
opinion that he is entitled to charge the additional fee of fifty cents 
for taxing the costs in addition to the transcript fee. 


“15. Are the deputy clerks of the district court and other 
deputy county officers required to give bond?’’ 


This question should be answered in the affirmative. Code sec- 
tion 1182, as amended by chapter 113, acts of the thirty-fifth gen- 
eral assembly, exempts from giving bonds the governor, lieutenant 
governor, members of the general assembly, judges of courts, town- 
ship trustees, aldermen and councilmen of cities and towns; and 
the following section requires all other civil officers to give bonds 
except as otherwise specially provided. Code section 1186 pro- 
vides, ‘‘deputies of state, county, city and town officers who are 
required to give bond shall give bond in such amounts as may be 
fixed by the governor, board of supervisors or the council as the 
case may be.’’ 


EXTRACTS OF OPINIONS OF ATTORNEY GENERAL 
PERTAINING TO SUPERVISORS. 


‘“1. The law provides for printing board proceedings at 
33 1-3 cents per ten lines brevier type. Can a greater price 
be paid for tabulated matter which is part of the board 
proceedings ?”’ 


This question should be answered in the affirmative. See Brown 
& Co. vs. Lucas County, 94 Iowa, 70, in which case the supreme © 


230 ATTORNEY GENERAL’S OPINIONS 


court say that it may be proven on the trial what amount of tabular 
work is equivalent to brevier and that compensation should be 
made accordingly. 


‘*9. May the board of supervisors employ an attorney as 
their legal adviser, other than as assistant county attorney ?’’ 


This question should be answered in the affirmative. See 
following : 


Seaton vs. Polk County, 59 Towa, 626; 
Jordan & McCallum vs. Osceola County, 59 Iowa, 388; 
Fetlock vs. Louisa County, 46 Iowa, 138. 


‘*3. May the board of supervisors employ a secretary or 
employe to look after their official business?’’ 


This. question should be answered in the affirmative. See: 
Call vs. Hamulton County, 62 Iowa, 448. 


‘‘4. May the board employ collectors for expense of in- 

mates of state institutions? See code section 2716 for pro- 

~ vision as to the college for the blind, section 2726 as to school 

for the deaf, section 2697 for institution for feeble minded 
children and section 2297 for insane.’’ 


This question should be answered in the affirmative. 


‘5. Must an officer whose fees amount to a fixed salary, 
(the excess being turned into the county treasury) charge and 
collect all fees, even though statute reads ‘may’ ‘shall be en- 
titled,’ ete.? Sections 296, 478, 490, 511, 498, 1291.’ 


This question should be answered in the affirmative. 


‘‘6. When an official charges and receives a fee where none 
were provided by law, is he to be charged with such fee or 
not?’’ 


This interrogatory should be answered in the affirmative. See 
Board of Commissioners of Hennepin Co. vs. Dickey, 90 N. W., 775. 


‘‘7 Do all charges for compensation (except annual sal- 
aries) have to be billed in and verified as at section 1300 of 
the code? Suppose special help is employed and paid by the 
month, must their time be billed and verified before they are 
paid?’’ 


ATTORNEY GENERAL’S OPINIONS 231 


This question should be answered in the affirmative. 


‘*8. Where an officer’s fees are in excess of his salary, must 
fees due from the county be charged and collected? As sher- 
iff and clerk’s criminal fees, or may they be waived ?’’ 


In my judgment fees collectible from the county after the officer 
entitled to the same has received an amount in the aggregate equal 
to his salary might be waived and left in the county treasury as it 
would be a mere matter of bookkeeping to require it to be paid 
over to the officer and then again by him returned to the county 
treasurer. Some uniform system with reference to this matter 
should be adopted in order to avoid confusion however. 


‘*9. Under section 592 can an assessor draw more than 
$2.50 per calendar day, in case he works more than eight hours 
in one day? In other words, does ‘day of eight hours’ mean 
$2.50 for eight hours’ time or that eight hours is the minimum 
time in a calendar day ?’’ 


The answer to this question will depend upon the form of the 
order of the board of supervisors fixing the compensation of the 
assessor. The order might fix it at so much per calendar day but 
in no event to exceed $2.50 for each eight hours of time which the 
board might fix as being necessary in which to complete the assess- 
ment. And the order might be so worded as to prevent the assessor 
from putting in more than eight hours in any one calendar day. 
But unless so worded, in my judgment the assessor would be en- 
titled to charge by the hour. 


It will be observed that in townships having a population of 
30,000 or over a city entirely within the limits or a city acting 
under special charter, the compensation of the assessor is not fixed 
by the board but by statute at $4.00 per day. See chapter 41, acts 
of the thirty-third general assembly. 


‘10. Have the board of supervisors any authority to select 
more papers than authorized by section 441 and pay some or 
all of them iess than the price there stipulated, provided the 
total compensation paid does not exceed the compensation al- 
lowed by that section. In case they do actually appoint more 
papers than in that section allowed, are any of those appointed 
properly appointed and how is it to be determined ?’’ 


232 ATTORNEY GENERAL’S OPINIONS 


The first part of this question should be answered in the affirma- 
tive. See Sperry vs. Kretschner, 65 Iowa, 525. 


‘‘11. Where the law provides as in section 496 of the code 
for the appointment of a deputy recorder and for allowance 
of extra help when necessary, can the board authorize the em- 
ployment of extra help when necessary, and fix the compensa- 
tion of any extra clerk at an amount greater than the law 
provides for a deputy ?’’ 


In my judgment there is no authority for the employment of 
extra help in the county recorder’s office except in cases where 
there is no regular deputy, and where there is no regular deputy 
and an assistant is temporarily employed there is no limit upon the 
amount which the board of supervisors may allow except that they 
are authorized to make a reasonable allowance therefor, and in my 
judgment such reasonable allowance for a short period of time 
might exceed the rate which would be allowed a regular deputy. 


“12. Should a county officer file a new bond for each term 
of office, or will his old bond continue in case he is re-elected?”’ 


A new bond should be required in each instance. The failure to 
qualify by the giving of a new bond within the time required by 
law would render the office vacant. 


‘f13. May the boards of supervisors allow bills to banks for 
collecting tax for county treasurer, as extra clerk hire to the 
treasurer ?’’ 


In my judgment this question should be answered in the nega- 
tive. The law contemplates that the work of the treasurer’s office 
should be performed-in that office and does not contemplate the 
payment of extra compensation or clerk hire except in the follow- 
ing cases: 


Where no regular deputy has been appointed but on account of 
the pressure of business in. his office the treasurer is compelled tem- 
porarily to employ an assistant; : 

And in counties of 30,000 population or over such clerk hire 
may be allowed in addition to the salary of the regular deputy as 
the board of supervisors may deem reasonable. 


ATTORNEY GENERAL’S OPINIONS 233 


EXTRACTS OF OPINIONS OF ATTORNEY GENERAL 
PERTAINING TO THE RECORDER’S OFFICE. 


“1. The acts of the thirty-fifth general assembly relating 
to concealed and dangerous weapons states that recorder shall 
‘make a complete record.’ Shall the recorder charge for re- 
cording the same? If so, who shall pay the fee? The report 
of permit to carry is filed by a public officer and the report of 
sale by a merchant. In neither case are those parties required 
by law to charge the recording fee to the permittee or pur- 
chaser. Are they permitted to charge permittee or purchaser 
if the fee is required by recorder ?”’ 

This department has held that the recorder is entitled to and 
required to charge for recording permits to sell or carry concealed 
weapons the same fee allowed for the recording of other instru- 
ments, which is fixed by code section 498 at fifty cents for the first 
four hundred words and ten cents for each additional hundred 
words or fraction thereof, and that these fees should be paid by 
the permit holder and collected by the officer issuing the permit 
at the time same is issued. 


EXTRACTS OF OPINIONS OF ATTORNEY GENERAL 
PERTAINING TO SHERIFEF’S OFFICE. 


‘‘1, The law says the sheriff must pay his first deputy. 
Where the sheriff has no deputy but at times, when busy, has 
a deputy called ‘riding bailiff’ to serve notices, is the county 
liable for the pay of such deputy or bailiff?’’ 

In my judgment this question should be answered in the nega- 
tive. Code supplement section 510-b makes it mandatory upon the 
sheriff to appoint at least one deputy and to pay such deputy out 
of the compensation allowed the sheriff under the preceding section. 
It is only other deputies who may be appointed that are required 
to be paid by the county. 

‘‘?. Should the sheriff charge the county for his time in 
taking patients to state institutions, at forty cents an hour?”’ 

This question should be answered in the affirmative. The fee 
for this service should be taxed the same as other items of cost and 
if uncollected when the officer retires it belongs to the county under 
the provisions of code section 510-a. This item, however, should 
be accounted for the same as other fees and the sheriff is not en- 
titled to claim same in addition to his salary. 


234 ATTORNEY GENERAL’S OPINIONS 


JOHN L. BLEAKLEY, April 30, 1914. 
Auditor of State. 


Dear Sir: Replying to the inquiries contained in the letter of 
Mr. James Parker to you of date April 21st will say that he calls 
attention to the case of Pitzpatrick vs. Fowler, 138 N+ W., 392, in 
which our supreme court held that drainage assessments past due 
do not draw the one per cent per month penalty, the same as other 
taxes, and he then inquires whether or not the rule announced in 
this decision would apply to street improvements made under code 
section 825 and to assessments made by the executive council under 
code supplement section 902. 


In my judgment this question should be answered in the nega- 
tive, for in each of those sections it is provided that the same in- 
terest and penalty shall be exacted as upon other delinquent taxes. 


In his second question he ealls attention to code supplement 
section 1407 which provides as compensation for the delinquent 
tax collector a five per cent commission to be collected from the 
delinquent, and also to the provision added to said section by 
chapter 89 of the acts of the thirty-third general assembly which 
provides that the board of supervisors may, in their discretion, 
authorize the appointment by the treasurer or one or more col- 
lectors to assist in the collection of such delinquent personal 
property tax as the board may designate, and may pay such col- 
lector or collectors as full compensation for all services rendered 
and expenses incurred a sum not to exceed ten per cent of the 
amount collected, and he then propounds the following inquiry: 


‘‘Can the two sections be construed so as to authorize the 
collector to get 15%,—10% from the county and 5% from the 
delinquent ?”’ 


In my judgment this question should be answered in the nega- 
tive. The section as it originally stood was applicable to all 
delinquent taxes and the five per cent was collected from the 
delinquent, while the later provision applies only to such delin- 
quent personal property tax as the board may designate, and the 
ten per centum is allowed as full compensation and also to cover 
expense. The purpose of this later provision was doubtless, by al- 
lowing a higher percentage, to enable the county to collect items of 
personal property tax which were small in amount and difficult of 


ATTORNEY GENERAL’S OPINIONS 235 


collection, and which could not, in the ordinary course of business, 
be collected by ordinary effort. 


Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


County AUDITOR, June 27, 1907. 
Marion, Iowa. 


Dear Sir: Replying to yours of the 24th instant relating to 
the delay in your abstracts of assessment, will say that after exam- 
ination of the law relating to this matter, I find that someone in 
your county is now subject to a penalty of $500 for failure to com- 
plete their work and file their report within the time specified 
by law. 

To enable you to locate the parties that are liable, I beg leave 
to eall your attention to the following sections of the code with 
relation to this matter: 

Section 1366 provides that the assessors shall complete their 
work and return their books to the local board on or before the 
first Monday in April. 

Section 1370 provides that the local board shall then complete 
their work on or before the first day of May. 

Section 1366 provides that the assessors shall make any changes 
in his books ordered by the local board and shall return his books 
to the county auditor on or before May 10th. 

Section 1877 provides that the county board of review shall com- 
plete their work and that the county auditor shall make up his 
abstracts of assessment and forward same to the auditor of state 
on or before the third Monday in June, which is now passed. 

Section 13878 provides that the auditor of state shall make up his 
abstracts of assessment and lay same before the state board of 
review on or before the second Monday in July, which is near at 
hand. 

Section 1367 provides that a penalty for failure on the part of 
any officer or board to complete their work and file their reports 
within the time specified above, shall forfeit and pay the sum of 
$500. 


By J. F. WALL, B. F. Carrot, 
Chief Clerk Revenue Dept. Auditor of State. 


236 ATTORNEY GENERAL’S OPINIONS 


‘Is the county, under section 2406, code supplement, or 
any other section, liable to the county attorney for fees in 
successfully prosecuting injunction suits for nuisances?’’ 


This question should be answered in the affirmative where the 
costs are not collectible from the defendant. See Newman & Blake 
vs. Des Moines County, 85 Iowa, 89, holding that where the fee is 
taxed as part of the costs the county is lable therefor; and also, 
Farr vs. Seward, 82 Iowa, 221, wherein it is held that the county 
attorney where he prosecutes the injunction suit is entitled to the 
fee in addition to his salary. 


‘When the clerk of courts goes out of office, is he entitled 
to take his fee and cash book with him, or should he leave 
it in the office as a permanent record ?’’ 


In my judgment this question should be answered in the affirma- 
tive. Any book which the officer keeps in his official capacity 
whether required by the letter of the statute or not should, in my 
judgment, remain as part of the records of the office. 


‘What is the meaning of the word session, as used in sec- 
tion 669 of the code, or can the council meet nine hours in 
one day and eall it three sessions of three hours each ?’ 


In view of the fact that it was the common practice throughout 
the state to hold these sessions of the board of equalization in the 
evening in my judgment the statute only contemplated a single 
session in any one day and that that session should be three hours 
in length in order to constitute a session for which $1.00 might be 
paid. This statute, however, has been changed as to first class 
cities by chapter 56 of the thirty-fifth general assembly, which will 
hereafter govern as to such cities the material portion of which 
reads as follows: 


‘Except when acting as member of the board of review, for 
which service they shall receive not more than two dollars a 
day for each day when acting as a board of review, to be paid 
out of the county treasury.’’ 


Yours truly, 
C. A. RoBBINs, — 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 237 


‘‘Ts the county, under section 2406, code supplement, or 
any other section, liable to the county attorney for fees in 
successfully prosecuting injunction suits for nuisances?”’ 


This question should be answered in the affirmative where the 
costs are not collectible from the defendant. See Newman & Blake 
vs. Des Moines County, 85 Iowa, 89, holding that where the fee is 
taxed as part of the costs the county is liable therefor; and also, 
Farr vs. Seward, 82 Towa, 221, wherein it is held that the county 
attorney where he prosecutes the injunction suit is entitled to the 
fee in addition to his salary. 


Your fifth question is: 


‘When the clerk of courts goes out of office, is he entitled 
to take his fee and cash book with him, or should he leave it 
in the office as a permanent record ?’’ 


In my judgment this question should be answered in the affirma- 
tive. Any book which the officer keeps in his official capacity 
whether required by the letter of the statute or not should, in my 
judgment, remain as part of the records of the office. 


‘‘Can the salary of the county attorney be changed by the 
taking effect of a census during his term of office?’’ 


In my judgment the salary of the county attorney may not be 
changed by the board of supervisors during his term of office. 
This, however, would not prevent a change by reason of a change 
in population being automatically made by law rather than by the 
board of supervisors. However, the change in population would 
not operate to change any extra allowance that may have been 
allowed by the board of supervisors for the current term. 


‘“When does the statute of limitations begin to run in ease 
of fees received by an official—when they are received or when 
they should have been turned into the county treasury ?’’ 


Will say that the statute of limitations begins to run against an 
official from the time when he is by law required to account for 
the funds rather than from the time when he receives the same. 


‘‘Are the board of supervisors entitled to mileage to and 
from home (in case they go home) each day—suppose they 
meet January 2, 3, 4 and 5 adjourning from day to day,—or 
only one mileage for the four days?”’ 


238 ATTORNEY GENERAL’S OPINIONS 


With reference to this question will say that in my judgment 
the board of supervisors would not be entitled to mileage to and 
from their homes on each of the days when they are in continuous 
session, but if there is an adjournment leaving intervening days 
when there is no session, mileage should be allowed for an addi- 
tional trip for each such session. 


N. D. Suinn, County Attorney, June 14, 1913. 
Knoxville, Iowa. | 

DEAR Sir: You requested my opinion over the telephone this 
morning: as to the mileage that should be allowed a constable where 
he serves several warrants against different persons on the same 
trip. 

This question has not been directly determined by our supreme 
court but the following cases may be of assistance to you in deter- 
mining the matter to your own satisfaction : 

Redfield vs. Shelby County, 64 Iowa, 11; 
Barnes vs. Marion County, 54 Iowa, 482; 
Bringolf vs. Polk County, 41 Iowa, 554. 


In Redfield vs. Shelby County it was held that where a sheriff 
made but one trip in serving seven subpoenas in that many differ- 
ent cases on one witness he was entitled to mileage for only one 
trip. In Barnes vs. Marion County a sheriff conveyed a prisoner 
and two witnesses from the penitentiary to the place of trial on a 
single trip and the court held that he was entitled to mileage the 
same as he would be for one person only. And in Bringolf vs. 
Polk County several prisoners were produced by the sheriff as wit- 
nesses under the same order, and the court held that he was en- 
titled to a single allowance of mileage. 

These cases, of course, are not directly in point on the question 
presented by you but they show the trend of the courts along 
similar lines. 

Cases of other jurisdictions that bear more closely upon the 
question presented by you are as follows: 


Grundysen vs. Polk Co., 57 Minn., 212; 
Logan Co. vs. Doan, 51 N. W. (Neb.), 598; 


The matter of Hempstead, 36 N. Y., Ap. Div., 321, or 
T60EN,CYoG85; 


Jordan vs. Coates, 7 New Brunswick, 107. 


ATTORNEY GENERAL’S OPINIONS 239 


The case of Grundysen vs. Polk County, supra, (found in 58 
N. W., 864) you will find directly in point in my judgment, and in 
that case they hold that where a constable has different writs for 
different persons and in independent proceedings and serves them 
all at the same time that he is entitled to mileage the same as if 
he was serving but the one writ. 

Trusting that the authorities cited may be of service to you, I am, 


Yours truly, 
JOHN FLETCHER, 
Assistant Attorney General. 


October 17, 1913. 
Gro. A. WiLson, Asst. County Attorney, 


Des Moines, Iowa. 


Dear Sir: Replying to yours of the 15th instant with reference 
to the construction of chapter 62, acts of the thirty-fifth general 
assembly will say that in my judgment the proper interpretation 
of section 2 of this chapter would not permit the county to collect 
the $200.00 license fee more than once from the same licensee dur- 
ing the annual period covered by the license even though during 
the year the licensee’s place of business may be changed from one 
town or locality to another town or locality within the same county. 
The statute is not entirely clear but the fact that it is dealing with 
temporary and transient merchants, and a transient merchant, as 
the name implies, is one who moves about from place to place, and 
the further fact that by section 7 of the act one who conducts the 
particular business in a particular city or town for a period of one 
year is to be held a permanent merchant would seem to strengthen 
this view. 

Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


—— 


October 11, 1913, 
Leo D. THoma, County Attorney, 


Fairfield, Iowa. 


DeEAR Siz: Your letter of August 23th addressed to the attorney 
general has just been referred to me for reply. 


240 ATTORNEY GENERAL’S OPINIONS 


You call attention to the provisions of chapter 31, acts of the 
thirty-fifth general assembly, and inquire: 

First, ‘‘Does that act in your opinion justify a petition on 
the part of a widowed mother to the court for relef there 
provided for without there first having been complaint filed 
under the juvenile court act charging such child with being a 
dependent and neglected child?’’ 

In my judgment this inquiry should be answered in the af- 
firmative. 
You further inquire: 

‘‘Does the act justify the court upon petition to grant a 
pension to a widowed mother who has been receiving support 
from the county and whose children are not otherwise de- 
pendent and neglected within any meaning of the terms?’’ 

In my judgment this inquiry should be answered in the affirma- 
tive. The chapter referred to was without doubt intended to con- 
fer the benefits upon persons entitled thereto without requiring 
them to be first charged as criminals or delinquents. It is unfor- 
tunate, however, that the chapter was by amendment attached to 
the juvenile court law in such a way as to leave its meaning doubt- 
ful. While this department has construed the act as above in- 
dicated, it is only fair to say to you that in some of the district 
courts of the state the judges have held otherwise. 

Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


J. M. Scurr, County Treasurer, June 25, 1913. 
Creston, Iowa. | 


DeEar Sir: Yours of the 24th instant addressed to the attorney 
general has been referred to me for reply. 

You call attention to the situation with reference to the delin- 
quent taxes against the Western Union Telegraph Company and 
to their position that all taxes more than five years old are barred 
by the statute of limitations, and you inquire: 

‘If I offer to write them the regular official tax receipt for 
the five years for which they make tender of payment, but 
refuse to sign the blanket receipt covering all back taxes, am 
I within my rights?’’ 


ATTORNEY GENERAL’S OPINIONS 241 


In my judgment this question should be answered in the affirma- 
tive. 


You further inquire: 


‘‘Ts their position good that all personal tax over five years 
old is canceled by limitation ?’’ 


In my judgment this question should be answered in the nega- 
tive. 

I recently had occasion to investigate this question in connection 
with a similar case which was then pending in Page county, and 
reached the conclusion that where the county treasurer brings suit, 
he goes into court in the same manner as any other litigant and 
that the statute of limitations would run against him and that the 
taxes for the several years could not be treated as separate items 
of a running account but that the taxes for each year are a separate 
cause of action, and that the statute of limitations would be com- 
plete as to each item within five years from the date the same be- 
came delinquent. However, I am of the opinion that if there is 
property of the delinquent company which may be seized by the 
county treasurer under an ordinary distress warrant, he should 
proceed in that manner to collect all delinquent taxes, and that 
by so proceeding, he would be able to avoid the plea of the statute 
of limitations as the statute of limitations only applies to the state 
or a subdivision thereof when it brings an action in court the same 
as an ordinary litigant. 


Yours truly, 
C. A. Rossing, 


Assistant Attorney General. 


Vinton, Iowa, March 18, 1913. 


GEORGE Cosson, Attorney General, 
Des Moines, Iowa. 


DEAR Sir: In the assessment for 1912 an error was made in 
assessing the shares of stock of the national bank at this place, by 
deducting from the value of said stock $36,250.00 in U. S. bonds. 
This error was discovered after the assessment had been run on 
the tax books and in the hands of the county treasurer, to-wit: 
March 12, 1913. I immediately under section 1385b Sup. 1907, 


16 


242 ATTORNEY GENERAL’S OPINIONS 


notified each stockholder by registered letter of such error and 
that I would correct the same by adding the increased amount to 
their assessment on the tax books and gave full information as to 
amount of increase and further notified them that on or before 
March 24, 1918, they might appear before me at my office and show 
cause, if any there be, why such correction or assessment should 
not be made. 

Since mailing the notices I have learned from the county attor- 
ney that the right of the county auditor to make this correction or 
assessment is questioned; the point being this was not omitted 
property, and claiming that after being assessed by the assessor 
and passed by the board of review, he cannot change it. The 
opinion appears to be based largely on a decision under the old 
section 1385, which, in my opinion, was corrected by the 28th gen- 
eral assembly, constituting the present 1385b. 

The county attorney is also attorney for the bank in interest, 
and while I have every reason to believe he will endeavor to give 
an unbiased opinion, it places him in a delicate position and I will 
be very grateful to you for an opinion on the point involved. 

It is very important that I have the proper advice at this time, 
as I wish to do my full duty in the matter and at the same time 
do not wish to overstep my authority. 


Very respectfully, 
ALEXANDER RUNYON, 
County Auditor. 


ALEXANDER Runyon, County Auditor, March 20, 1913. 
Vinton, Iowa. | 


DAR Sir: Yours of the 18th instant addressed to the attorney 
general has been referred to me for reply. 

In my judgment you are acting within the law in making the 
corrected assessment to which you refer. The case upon which the 
other side undoubtedly relied is the case of Judy vs. the National 
State Bank, 133 Towa, 252; but in that case the tax failed because 
of the failure of the auditor to follow the law and in effect. it 
amounted to no assessment. The supreme court on page 265 says: 
‘“We doubt very much whether there was any assessment at all in 
this case. None of the parties whose duty it was to make it were 


witnesses in the case, or if they were, they did not eee to eee 
made it.”” Pisano eee ae 


ATTORNEY GHNERAL’S OPINIONS 243 


In your case I assume that the assessment was properly made by 
the assessor except that the deduction made on account of govern- 
ment bonds owned by the bank was erroneous. Since under the 
provisions of chapter 63, acts of the thirty-fourth general assembly 
the assessment is made to the stockholder and not to the bank and 
the stockholder not being the owner of any government bonds 1s 
not entitled to any deduction, it seems to me that section 1385-b, 
supplement to the code, 1907, would authorize you to make the 
correction by cancelling the deduction and assessing the property 
the same as the assessor would have assessed it had there been no 
deduction. At any rate, this would be the position for you to take ~ 
until some showing is made by the stockholders as to why this 
correction should not be made. It is true that the property was 
not omitted, nor is there any change made in the real valuation of 
the same by the correction which you propose to make, but simply 
to disallow a deduction which should not have been allowed. 


Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


October 3, 1913. 
J. C. Rosrnson, County Attorney, 


Mason City, Iowa. 


DEAR Sir: Your letter of the 29th ultimo addressed to the at- 
torney general has been referred to me for reply. 


In this letter you state: 


‘‘On August 29, 1913, I wrote you a letter about the legality 
of loose leaf record system, also recording of revocations for 
carrying concealed weapons in behalf of the county recorder.”’ 


‘and request the view of this department on these matters. 


A thorough search has been made and no trace found of your 
letter of August 29th and your last letter is so brief that I am not 
certain just what you desire. While there may be some practical 
objections to the loose-leaf record system, yet I know of no legal 
objection to such a system. 

With reference to your other question will say that this depart- 
ment has heretofore held that it was the duty of the recorder to 
record revocations of permits to carry concealed weapons, that the 


244 ATTORNEY GENERAL’S OPINIONS 


fee should be paid by the person filing the revocation, and that the 
recorder was entitled to charge the same fee as for recording other 
instruments. If this does not cover the matters about which you 
intended to inquire, kindly advise and oblige. 


Yours very truly, 
C. A. RosBsBins, 
Assistant Attorney General. 


September 4, 1913. 
T. Ross & Son, 
Shenandoah, Iowa. 


GENTLEMEN: Replying to yours of the 27th ultimo addressed 
to the attorney general will say that the concealed weapon law 
requires a report of sales to be made to the county recorder within 
twenty-four hours and also required the recorder to keep a record 
of such reports, and while the law is silent with reference to the 
payment of any fee for such record, yet under the general law, 
code section 498, the recorder is entitled to a recording fee of 50¢ 
for the first four hundred words and 10e for each additional hun- 
dred words. 

Your objection to this law should be presented to the members 
of the legislature. 

Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


February 3, 1914. 
J. J. Ratnsow, County Auditor, 


Waterloo, Iowa. 


DEAR Sir: Your letter of the 19th ultimo, addressed to the at- 
torney general, has been referred to me for reply. 

You call attention to the provisions of code supplement section 
496 fixing the salary of the deputy county recorder, and then pro- 
pound the following question, ‘‘Has the board of supervisors the 
power to allow $1,200 per year to the deputy recorder.’’ 

The section to which you refer after providing for the appoint- 
ment of the deputy further provides, ‘‘The deputy in the absence 


ATTORNEY GENERAL’S OPINIONS 245 


of disability of his principal may perform all the duties of the 
principal pertaining to his office, and shall receive a salary not 
exceeding $900 a year, to be fixed by the board of supervisors.”’ 

It would seem to me that in view of this language this statute 
would have to be twisted into something worse than a ‘‘Rainbow’’ 
curve before it could be made to furnish the board such power. 
Hence, your question must be answered in the negative. 


Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


February 6, 1913. 
Mr. G. H. RicHarpDson, 


Belmond, Iowa. 


DEAR Sir: Yours of the 5th instant addressed to the attorney 
general has been referred to me for reply. 

Your question briefly stated is whether or not in determining 
the value of shares of stock in national banks the borrowed capital 
that it may have on hand should be taken into account by the 
assessor, and if so, whether or not deductions may be made on ac- 
count of bills payable. 

Under chapter 63, acts of the thirty-fourth general assembly, the 
bank stock is to be assessed to the individual stockholder, and as 
the bank and not the stockholder has the money borrowed, it 
should not be added to the capital of the bank in order to deter- 
mine the value of the share of stock. In other words, the assessor 
has nothing to do with the amount of money which the bank may 
have borrowed nor the amount which it may owe except as these 
amounts may aid in determining the actual value of the shares 
of stock. The amount of money borrowed should not be added 
arbitrarily to the amount of capital, surplus and undivided earn- 
ings nor the bills payable deducted therefrom; but the assessor 
would have the right to take into account these matters in arriving 
at the real value of the shares of stock. 

‘The true rule under the new law is to find the value of the share 
of stock held by each stockholder, which share of stock in reality 
only represents a share in the capital stock, surplus and divided 
earnings; then a deduction should be made not for the value of 
the real estate owned by the bank, but for the amount of capital 


- 246 ATTORNEY GENERAL’S OPINIONS 


actually invested therein and a proportionate share of this deduc- 
tion on account of real estate should be taken from each share of 
stock, or rather from the value of the same, as found to be before 
the deduction was made. 

Your enclosures are hereby returned. 


Yours very truly, 
C. A. RoBsIns, 
Assistant Attorney General. 


August 5, 1913. 
S. H. Retuy, Clerk, 


Marshalltown, Iowa. 


DEAR Sir: Yours of the 4th instant addressed to the attorney 
general has been referred to me for reply. 

Your question briefly stated is on what docket should proceed- 
ings under the widows’ pension act be docketed. No special docket 
is provided and in the absence of a better docket specially provided 
therefor I think it would be all right to docket in the juvenile court 
docket inasmuch as this law is an amendment to section 254-a20 of 
the code supplement, which is a part of the juvenile court law. If 
you are liable to have many applications under the law I think 
you would be justified in procuring a docket specially designed for 
use in such eases only. 

Yours truly, 
C. A. RoBBIns, 
Assistant Attorney General. 


March 27, 1913. 
Hucu Mossman, County Attorney, 


Vinton, Iowa. 


DEAR Sir: Your letter of March 21st addressed to the attorney 
general has been referred to me for reply. 

I note your construction of code supplement section 1385-b, and 
after having read the case of Mead vs. Story County, to which you 
refer, I concur with your view that the auditor may not be per- 
mitted to go back beyond the current year in any correction of 
assessments which he may undertake to make. However, in my 


ATTORNEY GENERAL’S OPINIONS 247 


judgment, if the assessment for the current years shows the deduc- 
tion of government bonds from the value of the bank stock this 
deduction might be cancelled by the auditor and the assessment 
made on the same basis as the assessor should have made it. This 
view is strengthened by the fact that section 13885-b provides for 
notice and also for appeal which was not provided for in the orig- 
inal section, 1385. This latter question is a close one and one that 
should be tested out in the courts. 


Yours truly, 
C. A. Rozpsins, 
Assistant Attorney General. 


Mareh 21, 1913. 
Dr. C. F. Ketuoae, Coroner, 


Clinton, Iowa. 


Dear Sir: Your letter of the 18th instant addressed to the 
attorney general has been referred to me for reply. 
Your first question stated by you is as follows: 


‘“‘The county attorney has now instructed the board that 
all fees due in cases of inauests as coroner’s views must first 
be charged up and filed with as against the estate of the de- 
ceased and if not collected then, may be presented to the 
county. Now this seems an absurdity for ten or fifteen wit- 
nesses to file bills of 60 cents each against an estate or for 
each person rendering services to be obliged to go to all that 
extra trouble.: I surmise a coroner would have some difficulty 
in securing witnesses, jurors or any other services if this is 
correct, and I venture the assertion that in no other county 
in the state does this prevail.’’ 


While it would seem as you say absurd to require each claimant 
to present his claim to the administrator of the estate before he 
would be entitled to recover from the county, and it would be 
much simpler to have the county pay all the expenses in the first 
instance and then if the estate were responsible have the county 
recover from the estate all the fees incurred on account of the in- 
quest, yet the statute fixing the fees for the coroner and others 


248 ATTORNEY GENERAL’S OPINIONS 


entitled to fees on account of an inquest, as found in code sections 
530 and 531, provides as follows: 


‘*Sec. 530. Witnesses and jurors shall receive the same fees 
as ie and jurors are paid in actions before Meee of 
the peace.’ ; 

‘‘See. 531. The coroner is entitled to charge and receive the 
following fees: 5 

‘‘1, For a view of each body and taking and returning an 
inquest on the same, five dollars; 

' 9. For a view of each body and examination without in- 
quest, three dollars; 

‘*3. For issuing subpoena, warrant, or order for a jury, 
twenty-five cents; 

‘‘4. For each mile traveled to and returning from an ex- 
amination or inauest, five cents. 

‘5. Which fees shall be paid out of the county treasury 
when they cannot be obtained from estate of deceased. 

‘“6. For all other services, the same fees as are allowed 
sheriffs in similar cases, to be paid in like manner.’’ 


It will readily be admitted that there might be many instances 
where it could be determined without filing the claim against the 
estate that the fees could not be obtained from such estate, yet 
there might be other instances where the only way of determining 
whether or not the fee might be obtained from the estate would 
be to file the claim; hence it appears that the statute would seem 
to sustain the view taken by the county attorney that the claim 
should first be filed with the estate, if an estate exists and is being 
administered upon. 


Your second question as stated by you is: 


‘The attorney also instructs that the coroner must not hold 
inquests upon persons killed as found dead unless the death 
was felonious. Now there are many deaths that the only pos- 
sible way to determine if it be felonious is to call witnesses 
and perhaps resort to an autopsy. Again many cases of acci- 
dent are due to criminal negligence of some person. Am I as 
coroner to be the sole judge of such cases? Then there are 
cases where the exact cause can only be determined by ques- 
tioning witnesses, and I cannot force people to talk if they 
don’t want to, unless my court is in session. I think there 
should be a uniform course of procedure, and J also think if 


ATTORNEY GENERAL’S OPINIONS 249 


our county attorney is right, there should be change made in 
this law; for if this rule holds, most coroners would feel like 
tendering their resignations. J would feel under obligations 
if you would give me your opinion upon this matter.’’ 


The statute governing this question is code section 515, which 
provides: 


‘‘The coroner shall hold an inquest on the dead bodies of 
such persons only as are supposed to have died by unlawful 
means and in such other cases as are required by law. When 
he has notice of the dead body of a person supposed to have 
died by unlawful means found or being in his county, he is 
required to issue his warrant to a constable of his county re- 
quiring him to summon forthwith three electors of the county 
to appear before him at the time and place named in the 
warrant. ’’ | 


While this statute is not very clear, I take it that the word 
‘“supposed,’’ as used in the latter part of this section should be 
construed to mean that the person notifying the coroner supposed 
the deceased to have died by unlawful means. In other cases 
where no notice is received by the coroner as to whether the cause 
of death was lawful or unlawful, then in my judgment the word 
‘‘supposed,’’ as used in the first part of this section, is to be ap- 
plied to the coroner and if he supposes the deceased to have died 
by unlawful means, he is to hold an inquest, otherwise, not. 

With reference to the matter stated in the postscript of your 
letter, which reads as follows: 


‘‘Under the ruling cited I will have to pay out my good 
money for mileage and get my pay as I can. And again I am 
told that no matter if an inquest takes a week’s time I am 
entitled to only the fee of five dollars. Sometime ago a body 
was found in a remote part of this county where I was obliged 
to hire railroad section hands with a hand-car to reach and 
bring in the body. Our astute attorney declares I had no 
authority to hire these men nor the county to pay the bill. 
Should I have buried the body where found, or bring it in on 
my back? In one case that I had at Lost Nation my actual 
expenses exceeded my fees just two dollars and fifty cents. 
Now what can a poor coroner do? I am serving my seventh 
term and up to this time all has been serene save at times 


250 ATTORNEY GENERAL’S OPINIONS 


when ‘‘business’’(?) was slack and having passed my 70th 
year I don’t feel able to walk and carry in my ‘“‘game’’ and 
not being a bloated bond holder, don’t feel like paying the 
county for the privilege of holding an office (and, I am a 
Democrat at that). Can’t you see in what an appalling con- 
dition I find myself and summer still so far away, and William 
Jennings Bryan too awfully busy to help me any?’’ 


will say that in view of the provision of section 527 of our code 
which provides: 


‘‘The coroner, except as otherwise provided by law, shall 
cause the body of the deceased person which he is ealled to 
view to be delivered to his friends, if any there be, but if not, 
he shall cause him to be decently buried, and the expense to 
be paid from any property found with the body, or, if there 
be none, from the county treasury, by certifying an account 
of the expenses; which, being presented to the board of super- 
visors, shall be allowed by them, if deemed reasonable, and 
paid as other claims on the county.’’ 


any reasonable charge by the section men or others transporting 
the body of the deceased by your direction should be recovered 
from the county. Certainly you would not be required to bury 
the body where found as the statute requires the body to be 
‘‘decently buried’’ and the place where found might not have been 
a decent place for burial; and in view of your advanced age of 
seventy years, you would undoubtedly not be required to bring the 
body in on your back whether business was rushing or slack. 

After receiving your letter yesterday I spent a very pleasant 
half hour listening to your friend William Jennings Bryan, and I 
was tempted to pass your letter to him to see if he could suggest 
any relief for you, but he was too busy. Probably by the next 
session of the general assembly the legislature will be democratic 
and you will be able, by presenting your grievances to that body, 
to obtain full and ample relief along the lines suggested. 


Yours truly, 
C. A. Rossing, 
Assistant Attorney. General. 


ATTORNEY GENERAL’S OPINIONS 251 


J. M. KNEELAND, March 12, 1914. 
Chariton, Iowa. 

DesR Sir: Replying to yours of recent date addressed to the 
attorney general will say that this department has never given out, 
so far as I-am able to find, an opinion to the effect that special 
assessments levied against real estate for street or other improve- 
ments, the cost of which may be assessed to the property, should 
be confined to 25% of the value of the naked lot, and in my judg- 
ment in arriving at the benefits derived from street improvements 
the buildings or other improvements upon the property may and 
should be taken into consideration. 


Yours truly, 
C. A. RoBBINS, 
Assistant Attorney General. 


FRED JENSEN, County Attorney, January 8, 1913. 
Spencer, Iowa. 


DEAR Sir: Your letter of the 6th instant addressed to the at- 
torney general has been referred to me for reply. 

Your question as stated by you is: 

‘‘Can the board of supervisors under section 1, of chapter 
89, of the acts of the thirty-third general assembly appoint the 
deputy treasurer as collector of delinquent taxes?’’ 

This question should be answered in the negative. As suggested 
by you the office of delinquent tax collector would be a county 
office and one holding such office would be ineligible to the office 
of deputy county treasurer under the provision of code section 491. 
Furthermore, you will observe that the act of the thirty-third gen- 
eral assembly, to which you refer, does not authorize the board of 
supervisors to appoint a delinquent tax collector but empowers 
the board of supervisors to authorize such appointment by the 
treasurer. In my judgment the board of supervisors would have 
no voice in the selection of such delinquent tax collector. The only 
thing for them to pass upon is whether or not one is desirable and 
if so they should authorize the treasurer to appoint, otherwise not; 
and it would be for the treasurer to make the selection. 

- Yours truly, 
C. A. Ropsins, 
Assistant Attorney General, 


252 ATTORNEY GENERAL’S OPINIONS 


January 8, 1913. 
FRED JENSEN, County Attorney, 
Spencer, Iowa. 


Dear Sir :—Your letter of the 6th instant addressed to the attor- 
ney general has been referred to me for reply. 

Your question is, ‘‘ Whether or not under section 1, of chapter 
89, of the laws of the thirty-third general assembly, the board of 
supervisors can appoint the county attorney as collector of delin- 
quent taxes.’’ ) 

In my judgment this question should be answered in the nega- 
tive. It is certainly against the public policy of the law to appoint 
a person to an office and allow him compensation when it is already 
a part of his duty under another office to perform the service or any 
part of the service required of the new officer. Under chapter 17 of 
- the acts of the thirty-third general assembly prescribing the duties 
of the county attorney it is made his duty to recover debts, revenues, 
moneys, fees, penalties -and forfeitures accruing to the state or his 
county and the term ‘‘revenues’’ would certainly be broad enough 
to cover delinquent taxes. 


Yours very truly, 
C. A. RoBBINs, 
Assistant Attorney General. 


October 17, 1913. 
W. H. Hurwey, County Attorney, 
Wapello, Iowa. 


Dear Sir: Replying to yours of the 27th ultimo, addressed to 
the attorney general, will say that I concur with you in your view 
expressed therein that under subdivision 3 of section 1266 of the 
code the office of a member of the board of supervisors elected for a 
particular district of a county becomes vacant upon his permanent 
removal from the district even though his new place of residence 
is within the same county. 


Yours truly, 
C. A. RosBIns, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 253 


: January 23, 1914. 
W. Scorr GutTurin, Auditor, 


Adel, Iowa. 


Dear Sir: Yours of the 21st instant addressed to the attorney 
general has been referred to me for reply. 
Your question as stated by you is: 


‘‘Tg the treasurer allowed to divide a tax into first and 
second payments if the order is received after March 1st?’’ 


In my judgment this question should be answered in the affirma- 
tive, and while such a division would be permissible, it is possible 
that the same could not be required. 


Yours truly, 
| C. A. ROBBINS, 
Assistant Attorney General. 


July 17, 1913. 
C. F. P. Froom, Chief of Police, 
Council Bluffs, Iowa. 


Dear Sir: Yours of the 12th instant addressed to the attorney 
general has been referred to me for reply. 

You inquire whether or not under section 3 of the new statute | 
regulating the sale and use of concealed weapons the sheriff is 
authorized to issue permits to persons residing within the corporate 
limits of your city. 

This question should be answered in the negative. Such permits 
may only be issued by the chief of police in cities of the first and 
second class except special charter cities and cities under the com- 
mission form of government. The mayor in incorporated towns 
may issue such permits and the sheriff is confined to the issuing of 
permits to persons residing in the country and in un-incorporated 


villages. 
Yours truly, 
C. A. ROBBINS, 


Assistant Attorney General. 


254 ATTORNEY GENERAL’S OPINIONS 


June 12, 1913. 


Mr. A. M. Deyor, Superintendent Public Instruction, 
Statehouse. 


Dear Sir: With reference to the request of Myrtle A. Dungan 
for the opinion of this department on the question of whether or 
not women may vote on the proposition to consolidate school dis- 
tricts will say that the matter is controlled by section 1181 of the 
code, which provides as follows: 


‘“The right of any citizen to vote at any city, town or school 
election, on the question of issuing any bonds for municipal 
or school purposes, and for the purpose of borrowing money, 
or on the question of increasing the tax levy, shall not be 
denied or abridged on account of sex.”’ 


Inasmuch as the question to be voted on is consolidation and not 
on the question of issuing bonds for school purposes women would 
not have the right to vote. 


Yours very truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


August 18, 1913. 
A. H. DAvison, 


Secretary, Executive Council. 


DEAR Sir: Replying to the letter of C. L. Ely of Maquoketa, 
dated August 11th, which you refer to this department for atten- 
tion, will say, that in my judgment the classification followed by 
the assessor in listing the property should determine whether lots 
in unincorporated villages should be treated as town lots or as 
lands, and whether or not agricultural lands not platted but situ- 
ated within the corporate limits of a city or town should be treated 
as lands or lots should be determined in the same way. That is to 
say, that if the assessor in listing the property listed village lots 
as town lots then it should take the percentage of raise provided 
by the executive council for town lots. On the other hand if they 
were listed as lands, they should take the percentage of raise pro- 
vided for lands. 

Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 255 


April 9, 1913. 
JNO. F’. Cronin, County Attorney, 


Marengo, Iowa. 


DEAR Sir: Yours of the 2d instant, addressed to the attorney 
general, has been referred to me for investigation and reply. 

Your question, briefiy stated, is whether or not township trustees 
are entitled to mileage or for any additional compensation other 
than for the time spent in attending the school of instruction pro- 
vided for by section 6 of chapter 96 of the acts of the thirty-third 
general assembly. 

The language of the statute is: ‘‘For such attendance the same 
compensation shall be allowed to the trustees and road supervisors 
and the county supervisors as is allowed by law for other services, 
to be paid as other expenses.’’ 

Code section 590 fixes the compensation of trustees and provides 
as follows: ‘‘For each day’s service of eight hours necessarily en- 
gaged in official business to be paid out of the county treasury, 
$2.00 each.’’ 

It will be observed that there is no provision for the allowance 
of mileage to trustees similar to that which allows mileage to super- 
visors, and it is my judgment that parties are only entitled to com- 
pensation for the time in attendance and not for the time spent 
in going to and from the place of such attendance, and that for 
such attendance they would be entitled to $2.00 per day for each 
day of eight hours or fraction thereof. 


Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


February 6, 19138. 
Mr. FRANK Corey, 


Fort Dodge, Iowa. 


DEAR Sir: Yours of the 4th instant, addressed to the attorney 
general, has been referred to me for reply. 
_ You eall attention to the fact that you are the owner of stock 
in certain banks situated in South Dakota, and that a tax on the 
investment is levied and paid in South Dakota, and to the fact 
that the taxing officers in this state seek also to assess and tax such 


956 ATTORNEY GENERAL’S OPINIONS 


shares of stock at the place of your residence, and that such taxa- 
tion in your judgment is double taxation and unjust. 

From an equitable standpoint there is some ground for this con- 
tention, but our supreme court has decided that such shares of 
stock are taxable to the owner thereof at the place of his residence 
within this state even though taxed in the foreign state. Hence 
it follows that the taxing officers would not be justified in waiving 
the right to assess and tax the shares of stock in this state. 

I call your attention to the case of Judy vs. Beckwith, 139 Iowa, 
at page 24. 

I will say further, however, that this law would not apply to 
stock in national banks for the federal statute would govern in 
such case and it requires such shares of stock to be taxed to the 
owner at the place where the bank is located. So if the stock 
which you have is in national banks, the shares therein should not 
be taxed to you in this state, but if not in national banks it 


should be. 
Yours truly, 


C. A. Rossing, 
Assistant Attorney General. 


February 16, 1914. 
H. L. Boots, | 
820 High St., Burlington, Iowa. 


DEAR Sir: Replying to yours of the 11th instant addressed to 
the attorney general will say that while soldiers are entitled to 
certain property exemptions, there is no exemption from payment 
of the 50c head or poll tax. 

, Yours truly, 
: C. A. Rossing, 
Assistant Attorney General. 


January 6, 1913. 
ANDREW BELL, County Attorney, 


Denison, Iowa. 


Dear Sir: Yours of the 4th instant addressed to the attorney 
general has been referred to me for reply. 

Your question as stated by you is, Can the board of supervisors 
refund taxes to anyone who is financially unable to support himself? 


ATTORNEY GENERAL’S OPINIONS 257 


The only express authority for the board of supervisors to re- 
fund taxes to the tax-payer is found in code section 1417, which 
provides as follows: 


‘‘The board of supervisors shall direct the treasurer to re- 
fund to the tax-payer any tax or portion thereof found to 
have been erroneously or illegally exacted or paid with all in- 
terests and costs actually paid thereon.’’ 


It is provided by code supplement section 1304 that the follow- 
ing classes of property are not to be taxed: 


Subdivision 4: 


““The polls or estates or both of persons who by reason of 
age or infirmity may, in the opinion of the assessor, be unable 
to contribute to the public revenue, such opinion and the fact 
on which it is based being in all cases entered on the assess- 
ment roll and subject to reversal by the board of review.’’ 


Hence I am of the opinion that where the exemption had been 
allowed by the assessor in accordance with this provision, and not- 
withstanding a tax was entered up and paid that it might be or- 
dered refunded by the board of supervisors under the authority of 
code section 1417, above quoted. But should not be so refunded in 
eases Where the exemption had not been allowed by the assessor 
even though the board might be of the opinion that they were en- 
titled to such exemption. 

It has occurred to me that perhaps you had in mind a remission 
of taxes levied before payment rather than a refund of the same 
after payment. 

The only authority for the remission of taxes by the board of 
supervisors is found in code section 1307 which provides: 

‘The board of supervisors shall have power to remit in 
whole or in part the taxes of any person whose building, crops, 
stock or other property has been destroyed by fire, tornado or 
other unavoidable casualty, if said property has not been sold 
for taxes, or if said taxes have not been delinquent for thirty 
days at the time of the destruction, and when the loss is not 
covered by insurance.’’ 

Hence it follows that your inauiry should be answered in the 
negative with the modifications above shown. 

Yours truly, 
C. A. ROBBINS, 
17 Assistant Attorney General. 


258 ATTORNEY GENERAL’S OPINIONS 


October 8, 1913. 
Hon. JoHN L. BLEAKLY, 


Statehouse. 


DEAR Sir: Yours of the 7th instant addressed to the attorney 
general has been referred to me for reply. 


Your first question is as follows: 


‘“Ts it legal for a county auditor to issue a warrant in yvaca- 
tion simply on a written order from one member of the board 
of supervisors, while not in session ?”’ 


This question should be answered in the negative. Code section 
471 provides: ; 


‘““The auditor shall not sign or issue any county warrant 
except upon the recorded vote or resolution of the board of 
supervisors authorizing the same, except for jury fees, and 
every such warrant shall be numbered, and the date, amount 
and number of the same, and the name of the person to whom 
issued, shall be entered in the book to be kept by him in his 
office for the purpose.”’ 


Furthermore, it has been held by our supreme court that even 
where the warrant 1s issued by an order of the court but without 
the vote or resolution of the board of supervisors, it is without 
authority. 


Polk County vs. Sherman, 99 Iowa, 60. 
Your second and third questions are: 


‘Tf not, can the board of supervisors pass a resolution 
authorizing the auditor to issue warrants on such order? 
Would the transaction then be legal? 

‘“Has the board of supervisors the authority, by resolution 
passed during their regular session, to authorize the auditor 
to issue warrants in vacation for any particular class of claim 
against county ?’’ 


In my judgment the language of the statute above quoted con- 
templates that the recorded vote or resolution of the board therein 
referred to should designate and name the person or persons to 
whom the warrant or warrants covered thereby are to be issued. 
Hence, it follows that an order of an individual member of the 
board would not be sufficient authority for the auditor to issue a 
warrant to any person designated in such order, and hence your 


ATTORNEY GENERAL’S OPINIONS 259 


second question should be answered in the negative. It also fol- 
lows that the board of supervisors is without authority to adopt or - 
pass what might be termed a blanket resolution authorizing the 
issuance of warrants to whomsoever might have claims of a cer- 
tain class against the county for by so doing and by passing a like 
resolution for each class of claims, the force and effect of the 
statute could be evaded. Hence it follows that your third question 
should be answered in the negative. 


Your fourth question is: 


‘‘Should interest on drainage assessments be charged in 
case payments are made one-third at time of filing agreement, 
‘one-third when half completed and one-third when improve- 
ment has been accepted by the board, as provided in chapter 
87, section 5, 34th G. A.?’’ 


In my judgment this question should be answered in the affirma- 
tive. Code supplement section 1389-al2, as amended by section 5, 
chapter 87, acts of the thirty-fourth general assembly, reads in 
part as follows: 


‘* And all installments of the tax shall be levied at that time, 
and shall bear interest at six per cent per annum from that 
date; provided that if the owner of any parcel of land, lot or 
premises against which any such levy shall have been made 
and certified, shall, within twenty days from the date of such 
assessment, promise and agree in writing filed in the office of 
the county auditor that in consideration of his having the 
right to pay his assessments in installments he will not make 
any objection of illegality or irregularity as to the assessment 
of benefits or levy of such taxes upon or against his property, 
but will pay said assessment, then said taxes levied against 
said land, lot or premises of such owner shal] be payable as 
follows: one-third (1-3) of the amount of said assessment at 
the time of filing the above agreement; one-third (1-3) with- 
in ten (10) days after the engineer in charge of said drainage 
improvements shall file a certificate in the office of the county 
auditor that said improvement is one-half completed, and the 
remaining one-third (1-3) within ten (10) days after the said 
improvement shall have been accepted by the board of super- 
visors, and if said installments are not paid as above provided, 
the failure to pay any installment shall cause the whole sum 
to become due and payable at once with interest at the rate of 
one per cent (1%) per month from the date of filing said 
agreement.”’ 


260 . ATTORNEY GENERAL’S OPINIONS 


In my judgment that portion of the language quoted which fol- 
lows the words ‘‘provided that if the owner of any parcel of land’’ 
has reference to the conditions which shall impose upon the tax- 
payer the higher interest at the rate of one per cent per month 
and does not operate to discharge or cancel the provision for six 
per cent interest above quoted, but that such six per cent interest 
is to be payable in the event the higher rate does not, by the action 
of the taxpayer, become payable. 


Yours very truly, 
C. A. RopBIns, 
Assistant Attorney General. 


October 29, 1913. 
Hon. JOHN Li. BLEAKLY, Auditor of State, 


Statehouse. 
DEAR Sir: Your first question is: 


‘‘Has the board of supervisors a legal right to allow to a 
county officer direct a specified amount for compensation of 
deputy or other clerk hire, or must the amount be allowed 
direct to the person performing the service ?’’ 


This question should be answered in the negative except as to 
sheriffs. Under code supplement section 510-b the salary of the 
chief deputy is to be paid by the sheriff out of the compensation 
allowed him under section 510-a. 

Prior to the enactment of chapter 43, acts of the thirty-fifth gen- 
eral assembly, the board .of supervisors was authorized by code 
supplement section 479 to allow such additional compensation to 
the auditor as it deemed reasonable. However, by the last para- 
graph or subdivision of chapter 43 this additional compensation is 
now limited to the deputies and clerks and is no longer allowed 
direct to the auditor. 


Your second question is: 


‘“Has the board of supervisors a legal right to allow direct 
to the county auditor a certain amount in addition to his 
salary for drainage work, or may they simply allow the auditor 
extra help on this account?’’ 


ATTORNEY GENERAL’S OPINIONS 261 


This matter is governed by chapter 121, acts of the thirty-third 
general assembly, the material portion of which reads as follows: 


‘“Whenever a levee or drainage district or districts shall be 
petitioned for or established in any county, the board of super- 
visors shall furnish such additional help, as shall be just and 
reasonable, to be paid by the county.’’ 


Henee, it follows that the pay should go to the help and not to the 
county auditor. 


Your third question is: 


‘‘Under section 2930 of the code, is the county auditor re- 
quired to transfer quit claim deeds or patents that do not 
convey real estate, but simply to cure some defect in the title?’’ 


This question should be answered in the negative. 
Your fourth question is: 


‘“Is the county, under section 2406, code supplement, or any 
other section, liable to the county attorney for fees in success- 
fully prosecuting injunction suits for nuisances?”’ 


This question should be answered in the affirmative where the 
costs are not collectible from the defendant. See Newman & Blake 
vs. Des Moines County, 85 Iowa, 89, holding that where the fee is 
taxed as part of the costs the county is liable therefor; and also, 
Farr vs. Seward, 82 Iowa, 221, wherein it is held that the county 
attorney where he prosecutes the injunction suit is entitled to the 
fee in addition to his salary. 


Your fifth question is: 


‘“When the clerk of courts goes out of office, is he entitled 
to take his fee and cash book with him, or should he leave it 
in the office as a permanent record ?”’ 


In my judgment this question should be answered in the affirma- 
tive. Any book which the officer keeps in his official capacity 
whether required by the letter of the statute or not should, in my 
judgment, remain as part of the records of the office. 


Your sixth question is: 


‘“What is the meaning of the word session, as used in sec- 
tion 669 of the code, or can the council meet nine hours in 
one day and eall it three sessions of three hours each?’’ 


262 ATTORNEY GENERAL’S OPINIONS 


In view of the fact that it was the common practice throughout 
the state to hold these sessions of the board of equalization in the 
evening in my judgment the statute only contemplated a single 
session in any one day and that that session should be three hours 
in length in order to constitute a session for which $1.00 might be 
paid. This statute, however, has been changed as to first class 
cities by chapter 56 of the thirty-fifth general assembly, which will 
hereafter govern as to such cities, the material portion of which 
reads as follows: 


‘“Except when acting as members of the board of review, 
for which service they shall receive not more than two dollars 
a day for each day when acting as a board of review, to be 
paid out of the county treasury.’’ | 


Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


December 20, 1913. 
JOHN L. BuEAKLY, Auditor of State, 


Statehouse. 


DEAR SiR: Your several letters of recent date addressed to the 
attorney general have been referred to me for reply. 


Your first question is: 


‘“When, on serving a warrant, the sheriff takes a convey- 
ance out and back, which conveyance he charges to the county 


as a livery expense item, can he also charge mileage for him- 
self ?’’ | 


In my judgment the sheriff is not entitled to charge mileage, ex- 
cept in certain special cases, where he is authorized to procure a 
conveyance and except in such cases he would not be authorized 
to charge for livery. 


Your second question is: 
‘‘In case the warrant is issued by a justice of the peace 
could the sheriff charge for livery ?’’ 


In reply to this question will say that in my judgment the 
sheriff is entitled to mileage only and not to livery. 


ATTORNEY GENERAL’S OPINIONS 263 


Your third question reads as follows: 


‘‘Can the salary of the county attorney be changed by the 
taking effect of a census during his term of office?’’ 


In my judgment the salary of the county attorney may not be 
changed by the board of supervisors during his term of office. This, 
however, would not prevent a change by reason of a change in 
population being automatically made by law rather than by the 
board of supervisors. However, the change in population would 
not operate to change any extra allowance that may have been 
allowed by the board of supervisors for the current term. 


With reference to your fourth question, which reads: 


‘“When does the statute of limitation begin to run in case 
of fees received by an official—when they are received or when 
they should have been turned into the county treasury ?’’ 


will say that the statute of limitation begins to run against an. 
official from the time when he is by law required to account for 
the funds rather than from the time when he receives the same. 


Your fifth question is: 


‘‘Are the board of supervisors entitled to mileage to and 
from home (in case they go home) each day—suppose they 
meet January 2, 3, 4 and 5, adjourning from day to day,— 
or only one mileage for the four days?”’’ 


With reference to this question will say that in my judgment 
the board of supervisors would not be entitled to mileage to and 
from their homes on each of the days when they are in contiuous 
session, but if there is an adjournment leaving intervening days 
when there is no session, mileage should be allowed for an addi- 
tional trip for each such session. 


Your sixth question reads as follows: 


‘““When a petition affecting real estate is filed and same is 
indexed according to chapter 288 of the thirty-fifth general 
assembly is this sufficient indexing to comply with all Iowa 
laws, or must same be indexed in duplicate in another index 
so as to comply with section 288 of the code?’’ 

Replying to this question will say that the index required by 
chapter 288 of the acts of the thirty-fifth general assembly should 
be kept, but it may be combined with the index required by sec- 
tion 288 of the code. 


264 ATTORNEY GENERAL’S OPINIONS 


Your seventh question is: 


‘“Has the county auditor, under section 1385-a-b-c, code 
supplement, the authority in making up his tax list to correct 
this error in assessment or must it stand for this year having 
been passed upon by the local board ?”’ 


Where the county auditor is not required to exercise any judg- 
ment in fixing the valuation of the property, he would have the 
right under section referred to to strike out any deduction unlaw- 
fully allowed, and make the computation the same as though such 
deduction had not been made, and to this extent he would have 
the right to make the correction referred to. ; 

Your eighth question reads as follows: 

‘““The Farmers’ Co-operative Produce Company of Des 
Moines have a station in Tipton, Iowa, with an agent con- 
ducting the business of buying and shipping cream and other 
produce, the question is, should the local plant be assessed in 
Tipton on the average business as merchants, under section 
1314 to -18, or does such business come under the federal tax 
laws and is taken care of in their assessment given from their 
home office in Des Moines ?’’ 

In my judgment such concerns should be taxed under code sec- 
tions 13814 to 1818 and that the federal tax laws would have nothing 
to do with the question. 

Your ninth question is as follows: 

‘‘Hlave the board of supervisors the authority to allow bills 
for services of deputy county superintendent rendered be- 
tween July 4th last and the date the county board of educa- 
tion met and fixed the salary of such deputy ?’’ 

This question should be answered in the affirmative. 

Your tenth question is as follows: 

‘‘Under section 2742, code supplement, may the board of 
supervisors allow the county superintendent additional com- 
pensation to 1915 when the new law fixing such salary takes 
effect ?’’ 

In my judgment this additional compensation may be allowed 
both before and after 1915, as section 2 of chapter 107 also con- 
tains the provision: 

‘‘ And the board of supervisors may allow him such further 
sum by way of compensation as may be just and proper.’’ 

Yours very truly, 
C. A. Rossins, 
Assistant Attorney General. 


ATTORNEY GENERAL’S OPINIONS 265 


October 1, 1913. 


Hon. JouHn L. BLEAK, Auditor of State, 
Statehouse. 


Dear Sir: Your letter of the 18th ultimo, addressed to the at- 
torney general, has been referred to me for reply. 

You request the opinion of this department upon the following 
questions : 


‘*1. May the boards of supervisors allow bills to banks for 
collecting tax for county treasurer, as extra clerk hire to the 
treasurer ?”’ 


In my judgment this question should be answered in the nega- 
tive. The law contemplates that the work of the treasurer’s office 
should be performed in that office and does not contemplate the 
payment of extra compensation or clerk hire except in the follow- 
ing cases: 

Where no regular deputy has been appointed but on account of 
the pressure of business in his office the treasurer is compelled tem- 
porarily to employ an assistant; | 

And in counties of 30,000 population or over such clerk hire 
may be allowed in addition to the salary of the regular deputy as 
the board of supervisors may deem reasonable. 


‘2. Are the deputy clerks of the district court and other 
deputy county officers required to give bond ?’’ 


This question should be answered in the affirmative. Code sec- 
tion 1182, as amended by chapter 1138, acts of the thirty-fifth gen- 
eral assembly, exempts from giving bonds the governor, lieutenant 
governor, members of the general assembly, judges of courts, town- 
aa:> trustees, aldermen and councilmen of cities and towns; and the 
fouuwing section requires all other civil officers to give bonds ex- 
cept as otherwise specially provided. Code section 1186 provides, 
‘‘deputies of state, county, city and town offices who are required 
to give bond shall give bond in such amounts as may be fixed by 
the governor, board of supervisors or the council as the case 
may be.”’ 


**3. Should the county attorney’s per cent of fines be de- 
ducted from the fines paid out of the general county fund ?’’ 
This percentage to be paid the county attorney should be paid 
from the general fund and not from the proceeds of the fines 


266 ATTORNEY GENERAL’S OPINIONS 


collected. The constitution requires the clear proceeds of the fines 
collected to be turned into the school fund. See Constitution of 
Iowa, section 4 of subdivision 2 of article 1X, and Woodward vs. 
Gregg, 3 G. Green, 287, where the exact question was passed upon 
by our supreme court and the conclusion reached being against the 
right of deducting the attorney’s fees from the funds collected. 


‘‘4. Does the statute of limitations run against the county 
in the collection of tax more than five years delinquent ?’’ 


This question should be answered in the negative with the qualifi- 
eation however that where the state or county brings a suit in 
court to recover a judgment for the amount of delinquent taxes, 
then the statute of limitations would apply in the same manner 
as though the suit were brought by an individual; but where in- 
stead of bringing such suit the treasurer or other tax collecting 
officer proceeds to sell property liable for the tax under a distress 
warrant then the statute of limitation does not apply. See 37 Cye. 
at page 1304 and State vs. Webber, Judge, 37 N. W., 949. 


‘*5>. Are marriage fees of justices of the peace to be taken 
into consideration with fees set out in section 4597 ?’’ 


This department has heretofore passed upon this question and 
held that inasmuch as the right of a justice of the peace to exact 
a fee for the performance of the marriage ceremony depends upon 
the existence of his official position that the fee is therefore received 
by him in his official capacity and must be accounted for in the 
same manner as other fees received by him where he is on a salary 
basis. See code section 3152 fixing the amount of such fee, and 
code supplement section 4600-a requiring such fees to be ac- 
counted for. 


‘*6. Is a deputy county auditor having a notarial seal en- 
titled to charge and retain a fee for affidavits connected with 
the application for hunter’s license ?’’ 


This question should be answered in the negative. : The supreme 
court of Nebraska in a similar case held that a county officer who 
had the power to take acknowledgments and who was also a notary 
pubhe was required to account to his county for fees earned in 
taking acknowledgments even though he took same in his capacity 
as a notary public rather than in his official capacity. State ex rel 
Frontier County vs. Kelley, 46 N. W., 704. 


ATTORNEY GENERAL’S OPINIONS 267 


Your 7th and 8th questions, propounded by Mr. Edward Collins, 
are as follows: 


‘“What fee, if any, is the’‘county auditor required to charge 
for the issuing a certificate to a legally authorized liquor 
dealer to show his right to receive shipments of intoxicating 
liquors from interstate carriers? 

‘Can the county auditor lawfully refuse to issue such cer- 
tificate to a legally authorized liquor dealer for any reason, if 
such dealer tender the fee demanded ?”’ 


I know of no statute that requires the county auditor to furnish 
such a certificate as is therein referred to. Code section 2419 con- 
templates the furnishing of such a certificate by the clerk and 
doubtless he would have the right to charge a fee therefor. Hence 
it follows that the auditor is under no obligation to issue such a 
certificate. 

Respectfully submitted, 
C. A. ROBBINS, 
Assistant Attorney General. 


; November 5, 1913. 
ANDREW BELL, County Attorney, | 


Denison, Iowa. 


DEAR Sir: Yours of the 3d instant, addressed to the attorney 
general, has been referred to me for reply. 


Your first question is: 


‘“Where a person has failed to or does not wish to work his 
poll tax on the public highway, outside of cities and towns, 
what sum is he required to pay in heu thereof ?’’ 


In my judgment the amount required to be paid as penalty for 
a failure to work the roads as required by code section 1550 is 
$3.00 per day. See code section 1552. 


Your second question is: 


‘‘Under sections 430, 431 and 432 of the code and supple- 
ment is there power given to the soldiers’ relief commission 
to grant a pension to an indigent widow of a deceased soldier 
where said widow had married said deceased soldier only 
about a year before his death?”’ 


268 ATTORNEY GENERAL’S OPINIONS 


In my judgment all that is required to entitle the widow of a 
soldier to the relief provided for under this section is that she be 
the widow of a soldier at the time of his death and while the relief 
is being furnished. | 

Yours truly, 
C. A. ROBBINS, 
Assistant Attorney General. 


January 31, 1914. 
J. O. Berry, 


R. F. D. No. 3, Atlantic, Iowa. 


DEAR Sir: Replying to yours of the 28th instant addressed to 
the attorney general will say that in my judgment the compensa- 
tion of the township clerk for posting weed notices should be paid 
by the county under subdivision 1 of code supplement section 591, 
which reads as follows: 


‘‘The township clerk shall receive: 


‘‘], For each day of eight hours necessarily engaged in 
official business where no other compensation or mode of pay- 
ment is provided, to be paid from the county treasury, $2.’’ 


Yours truly, 
C. A. Ropsins, 
Assistant Attorney General. 


~ 


January 4, 1913. 
J. A. Brown, J..P., 


Rose Hill, R. R. No. 1, B. 48. 


DeEar Sir: Yours of the 1st instant addressed to the attorney 
general has been referred to me for reply. 

Your question is whether or not mutual telephone lines for 
private or public use among the farmers, not leased or otherwise 
used with view to pecuniary profit, are subject to taxation. 

Your question should be answered in the affirmative. Telegraph 
and telephone companies should be assessed and taxed in accord- 
ance with the provisions of code supplement sections 1330 to 1330-d 
inclusive. 

Yours truly, 
C. A. Rossing, 
Assistant Attorney General. 


INDEX 


Page 
Assessors 
Gyn nern sa tiotiwn Olas tO We LX CCie ad cber Shee eye la ae oo ® fr Seeau, LVS; 2ak 
Assessment 
aK meat OG re INeLOLUL GT er SUALOS ate vie ciel vis elo che ape! ex oh eh eras 255 
ran OGE CACO ITECOLMEPE SLALGEE. oidieceteie aoe) eye a, oo aes a 9) 0! el'eiel ote if 
DPD ELEONSsAVOUL TO, ICAVG ENG) StALGe cee s tlcl tine 0 few we epee eters 120 
Abstract of Assessment 
UP COM Gm ltl C11 Gas acted owe, ete al & ohoJad @ #0) 8 mi ease al aie dices 230 
Automobiles 
ee PO METE UI TIVISOUS 0 Pree iy ee cra ai dare! co a chase) acl attol @) ee a) dia aren auelse a ars 40 
PRErMYUR CTALCL Geren rete re cris. wh Wid ola ee ete. 76 
PI TMORe KONI Dts POM TOLISTTALION olevgico ds ch wid oh ok «6 ce Aieterel a's. whi « 78 
PIS IeLr a Oner OLD COALOIS!  girerits «| a <4 cakes «ea doe thereie: orenete’s a9 
CeO MARC cl SOM Poe ar cae Sle ala iS’ oc boi es) ab ws eRe leh el ef when he i Pie ae 141 
Peer veto (leo WET) Cee Get tank OTE Area dab cick A ira oh oi Shan oven a aren er oe ain oe bs ev'elal¢ 213 
Banks 
Sree TACT ECU A re) tied "ae cline dh ance Me wceareren coda (GPa ae evel We! Me ats 51, 140 
BLOG ain -TeEslO GH ty OW LOLS ey ecco str alaeatere wl Sla me dks Walegete: ¢ 112 
PeECeLOMETA RALIOUG™ OL evens Adiaidcetaow © ciel oe ckihe, GA a afile ayeigke Dow. bas BEG 
ete Eaton FEE UK ALL 1 Oliet Olt a oral ws ool oo ced et Benth ode ae et ees ch es seis ws bay Oi so Lik 0 
Re UMPC ULCULO Tie IT OTN 0:31 ale dep on beth ei 6 ct os, even es 70, 124, 195, 245 
ered tse male oe DAIL DVr-Ual Kees ac tae ceete a's 1 oiy vn « let aioeree 105 
SLrocksaelnduent: tax Ol, NOW: COLOCtCd.. vi. a nes chao elena dwg ae 118 
SiraU nee alienate WIG, ASSOSSC0) 2 lime a eco me's cde welder thw. 127 
MealierOle res! estate GSGiuCcted ) from .-65's be ks Sie wes x 224 
Board of Review 
eres: £1) CO) RE es ee ee TM a A Sg fli Paste che: eke alanine sckieig. a. 60 
Board of Supervisors 
Mere tO MeO DPOCCGOIN She Ole atu d a oteie oo cei e eit caidrwand, eed & 74 
Marlow Or DOLL O WLIl Stem ON CYi DY tes oe oo liu ae a.e holes es a: she 0h vie, shee 88 
a eat Yell eta Lime COL ei eien sree Teen ee cra ata lets econ ie a org ch alateoaler 194 
Not sto. exempt corporation property from tax. . 2.5 os. snes 128 
What proceedings required to be published ......... ay chs 180 
Not to allow clerk hire to officer direct ............... 206, 260 
WMC LOVE POCA AU VISO LEM. ciccate ceca pore wale oh arais sepa dis el ew aceves 230 
DER GRY Vir Ame SOCTOLE LV iia cs) cfd ar el oo ek le Shue va Si al wlsceie sc Peake 230 
Bia Veneto OvurCCCCLOLSiy A. att aly weave gal cout al cic! sels el sil eis o0 6 obs 230 
Tin Dei OleNalorsds LOm DG SCLOClOG, DY ui. oe so oes tele sdny sles 231 
UCPC ay spat icee LOrsCOLLCCIANS LAX ass alsa Gees Pa alate selec ae 232 
VAealeve Weis MOM HEL. WIOVOSAR WAY oho vtec seve ee eee 6 252 
Allowed but one mileage in one session ...........-e000% 237 
eC ontyet UG wi iinVcORCOLD A LTO LAX. ¢ 5 vise obs the as delete ale o 257 


Brick and Tile Companies 
Veli WE gers ks) SBS RAC eS ts Aci RAR ae aa are a an ere 121 


270 INDEX 


Page 
Bonds ‘ 
Of officers not binding after term expires ........3, 55.05 6 
Of depository “Dank yo ee ee aa Men te eee eat 221 
Midelity ‘must..De ‘approved cure oes. a cee eate ie te nee eae Rae ec 109 
County Attorney 
To, be furnished office) and supplies) 3)... 0.) oie em 192 
PerCent Of (TIMES eo ee Gis Meee a! ieee inl Wiese ashe ace 204 
Legal adviser to county ‘OMCers 2.) ce sialic lene aoe 5 
Fines, entitled to ‘per Cent (OD jc iio. eee) see eles olen Rae 100 
Duties “Of ee ee Wie ee alicnell ae lg Ue le rr 106 
Duty of in‘ school) fund, (loans si e.n5 Se eae le eee ee 63 
PIX pense Ob oe cist lenge bela louere is latitude eeiatees eaetoues oe ia oitonte Matetaa a “15 
Fees’ ‘of! In IMSpeection’ Cases) el. Se es ee 2:36, f¢ 
Salary chanze /during term oo) we ile ee eee renee 237 
County Auditor . 
To correct errors ID VASSeSSMERES.. 8 re Anes wea oss ame 2 Ltt aoe 2 
Extra’ compensation’ for, ZOPNETS. i ie ele) evalece) s wun 67 
Must: ‘enter ‘all bills*on ‘minute’ book sy... eee 223 
Authority in drawing warrants shi. 0.5 Ge hl. Gem aie 223,95" 2S 
Must charge for’ administering oaths ... 0.22). DRAB si isha 223 
Fee.for ‘certificate: to liquor, dealer: 0. oi eee FST AN eae 224 
Ten.'acre tracts) icity. TAX OM yao oi leo ees wns! eal lite :el telnet ea aa 223 
May correct errors in assessment of bank stock ........ 246 
County Officers 
Salaries’ fixed by populations) 63 oN Js eiece elinie 6 ee lee 71, 208 
Change. of) salary during; term) 2) 2 22 ese ee 156 
Not ‘entitled::to extra compensation 2007.00. 4:04 he ee 84 
Should ‘file new bond each term \ fe. i a 232 
County Jail 
Use. OB Dy i GIUTOS i ane ee Fu teria talteue vane ah a inetiee alhect We ea te rr 15 
Cities 
Officials compensation not changed during term ........ CT 
Warrants order Of) DayYMeng: ) oe) i ic ee lwieie tals Win) ee ee 98 
Council not to exempt corporation property from tax...... 128 
Under ‘comnrission’ form’. ee 16 
Calendar (ed OP RAE MEIN NINO moae Rll OUI Us iene tae err 10 
County Superintendent 
HTS UDIIEY TOT Ss ee ie sna diate) Sain hater oe lestatey ato evita in ianlesl ne Ge naa 11 
Board may allow additional compensation (20 2. ee ee 218 
Constables 
Fees in detault Cases: vitae iene ies late hada ene Een are 22 
Mileage. for several warrants Same trip sp s\6/.58 we. chee 238 
Clerk of District Court 
Naturalization (fees) rea iVih) Marke de With) dpeiel doen tou. heh ee eu aee ets 25, 226 
Hee'-for. special. referee in probate 12) ne ee eee 207 
Bees: ing fling) Wilde ai atic Wy Sie ae ce aC aii ele ale eae ae 226 
Mee Lor: acknowledeements ie ae ey ei ore wa ceee we poke Nah Oueneee ne ernie ae 226 


Fee.as insane” commissioner) 2.000 2S Kia ei ice ee 226 


INDEX 271 


Page 

Clerk of District Court—Continued. 

PTO OES MTOM TO iC OALE OCs. sip v's eye) due oir ne (all biktw 0 Wig ke Shoe fe 220 

MeOeLCurecora . WOU. COUSTILULGS 1ii ob cereale yin s\eiglsalabads 227 

Morissue warrant on order of county attorney... 0.04.54 228 

eee rere CR POTTED Ie a) Sacer alee adlelloc widifel &- Hata ewa tae sasniis. oka) Mig ahg 228 

RE Ee TINGLE VAT COlY. li wialy youl anmeaae Mba terrold fn let eulal’ohiol dae ecaliel ats 228 

POM ale pore! tOctreasirer? OL SLAC oo fede a arc aaa tel able ones 228 

Cannot be member and clerk of Insane Commission........ 228 

Fee for transcript from other counties ...............00- 229 

Must. leave fee book when going out of office .......... 236, 7 
County Recorder ; 

RISES AC LTUOO Leet eats ed aoe) «Mara DET Phe RUE ay ed @ ots Seles ee orece 32 

Compensation of deputy and extra help .............. Zea, 244 

Peet Ot CONCERLGU  WEATONS) 2 oly: ecu ec las hors di otaler ee ec. afenatiohaters 233- 
Candidates for Office 

PeaL PPLE He PENI LGIIC a, arene al orderly ec tel see wie black Mio bele Geer e tcbele 136 

eee Werk VPRO IL Y CHIT eng ooo tog let ler Rice We te aek lc lele wate ale oellov ad's 158 
County Warrant 

SOMME ENA VLTTENIE Bafa ee Ta Pas ta “ake erat aa (a Bet die oo. dani es pak autal eaush. 170 
College Endowment 

aT Ee VamUN Eta N LIE IN EL OY a 2- cok, co calyup coi cer uila aa» gelac el ees ek pote ha Ooi whe 147 
County Treasurer 

Three-fourths of one per cent on special assessments ...... 215 

PCtmCOCH UM OT COILOCELOTING 0) arate <tcti-Ale) oer a. cae ee reed ahd co alas og 213 

Pie tee rire y wD ki! LOT. COLGCTID Es * LAX Wel ean sa asl heres che aleT ace: ce 221 

Diever ViemtaR er alyer \WArC Oe ah Sta si: «cic 'e thane late ots els wm nik cals te 253 
Co-operative Companies 

eae PLE LCT PRR CTEMEM GR ee it eater er a! tl coe ncia aM ADS Cae aha le ERR a Jo da vettaclatay Qaialgoitee » 218 
County Printing 

eee MCT Men dA shaver yl Coase te oa atest eral eaten auth ata ah dis ‘apse 229 
Coroners 

Pees to be cnarved: against) Gstate ol ke ele cele ee i ee ee 247, 250 
Concealed Weapons 

POG nEed? BSAles TOT COUN LY PECOLLEL cae pir glovaiy ipealln) cibdauete ad ela tet 244 

MemietiOu LOMmisailon Perilli 10 CLLY vacy-st) aleqodihoves, xlo ele viereuy 253 
Delinquent Tax Collector 

PTE Tee CLO ISRO rte csc cliche te Abo aba loe Suet cM aa ie allel ano fo valle aaa tel ee av eice 39 
Domestic Corporations 

PenMesiiOlesOr CAML ta SLOG. art hoes rhe sha ce brieuaieen Goh era beatae 43 
Deputy County Auditor 

MOPOIMLIGEHE OL aD DLOVE (DM aDOATIM) . cersielete lee: Be Wiel bles atolls 49 

Mote aC COUNL SLOTEITOLOLIGA) | LOGS 4 ho. 9h Gin dan col at heim a, Phar alae: atu 224 
Deputy Sheriff 

CTE IViT Mee Laren ek PL lear ah: SUTiCls coats bad cl BL Re a Pi wcletha ist past ova eile eo eh 108 
Deputy County Treasurer 

Pi TemeG COT DCT GHeLOIN. (Ln law {schol a) ar aciithn ey ere a aiias ela l Greta etel x 220 


Peanut perae mouent, tax GCOllEGtOr. \is-5-8 Veh ee eee oe 251, 252 


272 INDEX 


Page 

Deputy County Officers 

May’ De WOMEN she ico wee eteie teh acnee enters malieile ete te sakes 211, 7212 

Must :21VE DOME lace eis. alte wi eee te eee tate ots lovee leila ects et ea 229 
Drainage ; 

Interest YO MWarrants ot. iede eoeehe eeuea ts ele Sus puke Nene lean 13 

Assessments, ‘interest on ' i. S440. % 5.0 2S oe. ee tore ee ee 259 
Drageing!) Roads. cle wvacec tees Be ee . 148 
Domestic ‘animal Warrants os Gri cisk Se) oe ew wk ele sls oe a ie ee 220 
Deeds, tramsfer. sof) 56 i thie ce A Ye ay raises is ce eee 261 
Exemption 

Of “property .from” taxation ic. ww Selene ee 66, 128 

Of ‘manufacturing “plants © 23. hits Sele a's eG os ee ee 214 

Of personal: property on agricultural lands... 2.) epee 216 
Harm Names 

Registration ‘Of ice eos selon a ese ls ke us ene eee 46 
Kumigation 

County not Wable LOT wie vo ie ace oe elles ie si 3 1p ke ca 94 
Hidelity Bonds 

Must ‘be approved 30/6). 5.36. 32, ie ee we uae ollie et oe ee 109 
Harm Products 

Wien wexempt from “tax, <.°.'3°.sceieseeie ee occas ye eee 145 
Forest Reservations : 

PARATHION OL i ie ak Ge dN oa ie Rea re sane) Ue lek ap he Ne a 168 
Fire Companies 

Members of exempt from poll tax... 35. 0 ..001. wie eee 12 
General Election 

Publishing: returns of 146 Pashia. pea: ote ee ae 1097-29 
Highways 

How established ...00%.. Sic. eleie b wee wows Ss ce 102 
Hunters License 

Is valid) without fee 2.4). 54 whic ecee 6 wie wie ee oe ee 194 
Insane 

Custody \of before commitment’ ... ick). 86s oe 81 

Settlement,Of:4j.5 ¢ Gi ee FB Meee ee Ge ee 6 
Incompatible: OTACers | nse eco 28 God te cies SUR Pel lenelae aes ee nee oT 
lowa National Guards | 

Members exempt from ipoll tax: ne. Yass. se ee 24 
Insurance Companies 

Taxation: JOD) Stock Ane 65 eee oot ae Sore Rae eee ee ee 175 
Interest 

On special assessments, certificates ...........2..e00. 220, 234 

On; SdeliIn guentttax oii s lieu te uae ke Se ee rer Yeon hiGh ota a Oe eee a 220 

On -drainage aASSeSSMeNnts: (sess Res BLE eek Cte ee en 222 


Jurors 
Fees in justices peace courts 


INDEX 2738 


Page 

Justice of Peace 

bee alec Comme GMM al ene at cae acest she aie. <-eedi4. 4 av eset © #3 18, 22, 266 

IVUmCTRULUrece tO. OUICE, SUPDIICSy cs ac Meo asic sla cists cis o 0 o ele stars 149 
Judges of Election 

Creme Heth CSILOTT OF O IW arr. al at Nc ote cod os Ae aie srakenc aed & s aie ge Ga a Odes anal « 160 

Cre CHOTA COM DENSALLOIY OL asl. cs ae ele «sta ce a ate Oa 185 
Land Contracts 

peed COOL OL SPE tate eye ee Cedar dic cis cert aon das U2 ade Laas 2c 
Lodge property 

tet Lee (ie er ee ie ree ak wel cr ey acai eos erat ote ol onl a SG Ta Ge lod 
Loan and Trust Companies 

eee LOT am) tte Paty oa ot as erin day eles oF hak ef Fo as a caves a. & 91d aes ahie’ shames Gace ene 23 
License 

Pur Sent ee CT Gi TTGCrCUANLS | ho cicla aan d eth « cvajdrazalenclat aerate. aog 
Loose Leaf Records 

ese Ree Gl Ge Rees aria gt et ees eh Sree. aed. gave IRS soi are Alston o alorece 243 
Lots in Unincorporated Towns 

eam SS Cassatt CL Mrs tees oe. fg ahd a oi 'e ln hie Soul of orale (tha, tse) ees ehan ol #) erence 254 
Mortgages 

HUM IetALOSPASGORSILONE. Oli) sc.c s aterars ccaterg & A alace cake adie osc 37 
Monied Capital 

SCL TAME) Mamet OP en Sere ag og chal” alia Ger gaits Ba AN aia hc oh aden a < Da veheno 

Ber CriONe Ofer oe | DOHUSe ThONW jade. waerct al cr diel & ole So o8e-oe aio 56 

nts PATE CAME eek TC 2 ie cal at gl GH: oe a os chat PRE cre inline A Tes: okays a. ale ea Kee 58 

EUR ee CMe CNL) Sead a at a at a ast «cf a al ctv ahah acct aia etnies’ «, .4)'S 4) « 196 to 204 
Marriage License 

WASTER OCR Rere yh at. fuss. ab ok te a te aeane core ee clave’ < Oe ehahva eee 69 
Merchandise 

PE UMmmrem ELC UMW Neat Deke et cr a cong eos. athe Coakar Gig aeel shee oh Wat Sea leher 114 
Manufacturing Companies 

LOC em UalLOW sASHOSBOU 4 gfe sin. 4 due od 4.4 oak Be Bee eww ale ee 120 

LoastOL es HOLeLOs De exempted. by DOATdy. Deufo fae. sus 8a 6 os be 214 
Monies and Credits 

POUT ULO GT GisOln AX « OLLN aes & 4.5 408 1 aot. 8 otha cde 4 ha, ge eee 130 

POSMOUMOLR Aaiae sO Adah Be of ete dO a teal ee nel trate cetera oad Wlake! 190 
Motor Vehicles 

Sen Lee Cae Ome EIS bey Seay ees U ale eh ak. Seem ala a eo don dS aod aharees 144 
Mulct Tax 

PeomeLecity Gis £ONSTAIm LUNCMisY wh a Merida ace! a. os a Suey aie Seas ate 183 
Notes 

For rent of land assessed aS moneys and credits.......... 37 
National Banks 

PM OMEILUGTL EDC ee COU he chiles Peas Sia nen a Sets sae er ae ass. ui dla a deere g 23 
Nomination Papers 


PORa eel TMELCCMEAN IILCOOE FoR Era tan an SOLE: ccs o! Dee e al eek ak whe mie 134 
18 


274 | INDEX 


Page 
Notary Public 
Acknowledgements on ‘Sunday: oau.. . 2 c.sels «bee ane seen 179 
Officers 
That may be removed (by \COULt 5). vs.g se ese eee 76 
Must collect fees when statutes reads may ............. 230 . 
Fees ‘when none provided wby Jaw ... 2.4.25... +. =)» ope ee 230 
Claims for Compensation must be’ sworn: to.....°... topo eee 230 
Fees in excess in salary must be charged ...... 6.0 eee Dek 
Omitted Property 
May. be, assessed by treasurer 0.00 okey 2 aise te ee 92 
Primary Election 
Withdrawal of candidate o cscs areca ele se veces row 
SUPSrVIGONs vO wena wre iach aes Te eee id ghee tee aig te ele 160 
Township. committeenien)( s:. sa iis eee wie eee eee ‘9 S08 tee Sean ee 160 
Advertisine atepolls ie Cow iisa ce ger ees ees Re a ae 162 
Convention not confined to persons voted for .....:........ 162 
Candidate, nominated’on two. tickets |.).)..........4 oe eee 169 
Number of ‘votes required to nominate )..)). Jo. ooh 174 
Police officers vat, entitled) to pay <a.) aie ee ee sin DRE 
Board of supervisors expense charged to general fund.... 210 
District officer, not required to: file. papers... 2. [cif eee 210 
Publishing ‘tabulated returns‘of a0 ee Pe ee 218 
Publishing “proclamation: Of wie ois seh ae eee ee 156 
Mline papers for, 244 foie ce eee hore eeo ae ae ele “ely Sos aan mene 153 
Alphabetical list of candidates (0%... uy. ais @ ob wae 154 
Publishing notice Of. 129 
Percentage of votes for township officers ................. 34 
Judges of election to deliver poll books .),..... 0.0370 sage 46 
Poll Tax 
Wiho required’ to: WOrk 2.6 shee Pew ey pose y Sar, St 14, 80, 88) i242 
Hxemption ifrom: 2 cy 26 do tee at A it ioh oh del lh Ale a ee 126 
When payable in labor: ...)..c26. Seah ole ee ee ee 41 
Amount)collectible (05 ose ae eee ae eee 173 
Amount of payable in cash ooh oy Pea foot ee ee a eee 267 
Peddlers License 
ADDUBL ee ere ae rane oe: Melis aM See aL MAD, 8 aaa en 67 
Of fruit and Vesta lies yi ieie yan ave sure Lcd ie iw RG eat ea 19 
License (required ee es ed a ee eee a Onin aoe Lo 
pales :from” car, Mot “CONSEITUTC |) Wi a5: acs ie teak eee 188 
Publication 
Of ‘poard ProceeGines | ep ee eee late lee acai eA 74 
Public Officials 3 
Must De CHIZENS id Ab 0h ooo ce UH ohare Shin Reem ae ne 85 
ealary ‘Stops iat death) nace ei Siege alan ry area ne 181 
Parsonages 
Notexempt) unless owned (by church aos ce toon, oe eee ee ASG 
Policemen ee 


PENSION | TUNG P66, oie 0 ie ele Mieretirln sa lace! bela Sar eens en ne ca 123 


Page 
Patent Medicines 
ET Cols AA tee A AL el Ra AO DA PD aie aie Bee oe ii ON Pi AR A OR 12 
Paving 
SOM EME DOME LLL WEL Y St oO. she asta duca alia) aig lal tee. Whe, avace "wl wel e ale ates alin lots i553 
Personal Property 
Bre CMGts SRC I TUANY oC ee ed Rel eb ial ei eieP iia) aie dis ew gee Pate wimiaats ie 
Physicians Certificates 
PUL BIIONTOCOL GCC rT LY Ih york wete adh ct sea airy kita tatgl fan do apece ate ake 209 
Penalty 
ORPPCLE ITI GUUS Le a Cena ee ro cere BRU Ma tera EM Ugh co diley a faind ela iat on ed 220 
Road Tax 
UCI TION Meee ie kts ae STA aie oe ads & te eetely Mee sheng who as 35 
pit MEAT VOU PARWONTC TE) i LUTION fete oir od foe cus Slele alah dita aves: ooh ey erene 144 
Road Work 
TePe OR COM POUMALIOT SLOWS S ciarileleca a o gate 4+e.s 4 x vlaleps cienar gist @ ate 36 
Receriot, Mane with Team ANG WIthOUt oe cid. 0 < ee chaldetem Ao 36 
POPUGREALION Om sUpOri NCONGGN ty d45 4-5 cain bale on adele dtelilescrielers 36 
Cutsine, weeds. when, levy, iS USC :WD oe :. ick ace ooo el elete were 36 
ee PLEO WIL Wk slisme iy vy, eis 4 A steep ho lela oe didi damere aed Clete 42 
eee (11h Ch EAE Here ca LOA 5 mala sa" chee Roe aku e laa A CER one 3 62, 219 
Removal 
Pm COLSe Var OtaGriGls GCOUNG. ss ulead itstaie date toevd. coWaclulele ccelale 76 
Registered Animals 
WU PORLESCARALLOIL NOY ar ahora tha Pale LEW oe ska Go ay el aunty a ae turer as 86 
Residence 
MaAVUreLaiL, While, temporarily, absent. (ead Wola. wees ew ole 129, 163 
Bee OMe O LUG kel CAC Iho na) A St grees Coe aa Gartee asco acdl aba ae wie. e 141 
Pore Vvelineg lO we ACO UIPed Ald LOS! ois inal earare! area i0,/ere ee 153,186 
Registration 
CP METAOLe Wile ie Ted Wile”. Os aa k © svh evens ae ered Hoste tale hate a3 150 
Representatives 
NOMMATLON OL). i 5155.0, ¢ 6 aie a> SPMAS IEE 0 SiMe: asa Re -s Me Pla yoda mld Mea 166 
- Rural Route Drivers 
PCerMMOPeCGMOILLErO Ur. Lan ie of tee rca ahha huh ah sy alte de Stal al ae'e 212 
School House Tax 
RRR CT REL Game Aa MOE SNe ate cd! GMa oda Sgt aa ghd bs Cie taal Cha Muelle es Ree, a 6 38 
School Fund 
Bis eee BE DALALGL YO ROLE he od vs eryul. cb audiha Bate wd cblaitcldiane « BEL 
PP OMmELOUM Lite DELO VLOGUY cates AMIR ite inane Mal coy Seat sis ea cbs ess 182 
Pree m POMC IO LOL ORL OTL paerd sect rea tue a Prac. eatatet ied dice olives 103 
Sewers 
eC a CLikere LO LimeWire sage laid fain ete aie: Cc dod. chzl aiaiacs. hd aie: he hal aie 56 
State Banks 
Dem aet oes War Se DOTS LPOINS SCOC bir ah caer hale ae gates elt oat’ shacaialw as 56 
Soldiers 
ee ye OL EAL CLs Ca Mg or chy oS can ace Oe ara a ee had ease Se Lie’ Ethane ye 627.1560 


Rtas een: Ce LORD ee eP TLC) WYO) LILULCE Dt wet Shah etary cere) a? oo aE ot oak oaks lies 83 


276 INDEX 


Page 
Soldiers—Continued. 

Wife may be received into soldiers home ;..... 2. cee 9 

Burial OF es Phd bank 6 0 bos ee BlRes ota yene eee ee tee eee 167 

Not exempt from 50 cent poll tax... 0... U.S eee 256 
Sheriff 

Fees in justices Court. :.). 26 204) 2. swe oe sue eee 63 

Compensation for obtaining evidence ...:.. >...) eee 65 

Fees for Summoning Jurors . 2.0.5... J 606 ss 6 8s «0 164 

Mileage in requisition Cases’. 3... 0. ves se lee ene 23, 208 

Compensation for. boarding prisoners ........ 2 ses 33 

Compensation after expiration of term’... 2... .') ih eee 137 

Must pay his ‘first deputy 6.06405 Gsm oe Ue eee oe ae 233 

Fees. for.taking patients to asylum .....%.....0.4... {30 eee 233 
Salaries 

Of county officers fixed by population ........... 22°25 See el: 

Special Assessments 

Tnterest: On See NR ee es a ana oct eae 79, c295 

Property’ liable “for 3.°.'.5.'.\.4' 84.045 e\s ge 60) 6 i si ne 193 

County treasurers three-fourth of one per cent on .......... 215 

Not to exceed 25 per cent of value of property............ 251 
State Officials 

May not be garnished” 2... 0% 20.8030 2s 6 ces 406 90 
Short Hand Reporter 

Compensation sof 66. 86 oe ka A 6 bee eck te te ae ees ee 93 
Stocks of Merchandise 

aX sa SATON COMMS cine noes ete tae ane eee eel oe le Se 114 

Taxon te Lelie, ce CN othe cleidls SOO See er 135 
Surety Bonds 

HOW ‘COMGIHIONEd.: PIs a iin eel eee ese aie eee ce 132 
Supervisors 

How nominated”. 44 626 452 6 ew ete en tte to ee ee ce 157 

Hilection’ of, at large and by districts 2.0.4... 240et ee 184 
Securities : 

Taxation and exemption of *.......+.o-.2. 5 ene ee 176 
Statute of Limitation . 

Against -collection' sof: tax-....54.256 5 waco cist oieeene ae 221 

AN SRINST TESS aye ielstel ch eee ie tae le Po tatee rece ee elena tae Oued ae eee Sem eens 237 
Session 

Meanings of in section 7669 sisi oes e oe cece 6 ee - 236 
Township Trustees 

Compensation “OL eel ole es le nee ee ee ae ae 

Mileage attending ‘school of instruction <22.%.5 (2445-8. 255 
Township Clerk | 

Compensation. for posting weed, notices =..2 .4 cs. see 268 
Taxation 

Of land Contracts a sA oe Fpl 6 Rie ee eae ee eee 72 


INDEX 277 


Page 

Taxation—Continued. 

Tee Set CR LETC ASCP Vile SUB CEN ciate lec ererd eroresa d:c%p fa aoa os ochre ene 189 

Smell awerOne Lem acre. LLAClLS® oais)..s decree aleldee ob dee etlea alate 223 
Taxes 

WVehEnivartly pald cannot: DG r6eCOVered, <6. )o etc wel ee ele as 89 

EGO MMU Clit OS DOULEVIOG ike. fo to 4s ald d claem’ te olibe eae oe 182 

We hemelion: ON MeChANGiISG: 2.5 -e4: seed aeiae we cea eer ae pate 114 

On stocks of goods, owner on January ist, liable for ...... 135 

Dre tumecTCoiimOtesoneral: fUNGii a caste ce s Hele sce alo Hatatale 183 

Statute of limitation against collection of ........ 221,240, 241 
Trees 

Lames Wik voila Ve DOLLY OA OSLTOYs ice tia tered es el ile dis Geetel cits sepa aa 122 
Teachers’ Certificates 

pinele, recistration Of suflicient w.. shee. . oes... ee 8 
Terms of Office : 

TO begin second secular day of January .........¢5aeeee 195 
Teams 

OT rural route: drivers’ exempt .........<.... Ae Ae 212 
Telephone Companies 

HOW ASSONSCOE As. oc oes che cctee ae bo id. ee ee. 268 
Merersso1giers COUuneds . 245.088. bees. ees ie oe. Oe 87 
University Property 

When liable for tax 131 
Voters 

Qualification: Of 0. 006 a ee Oe le 5 125 
Value 

Of real estate deducted from bank stock |. “Siig aeueuacse 224 
Warrants 

SteemrOLdOtmOLe DaAvINel te, «ni che cece make icieand od Hota a deeper 98 

Oust VeOrd Ormol s Pay 1 Clita ti, ware alg oe Pek eel did f della aheuste 4 eels 170 
Women 

HittedLeatOcGortal fs OLLGEr a merraare © oO ole cid iis uas ah a tel dud elgg. «od aie 142 

Brayeanoldstie: OLiCe Of) COUUtY ad sae dade Sacked eee Gas Dleye aba 

May not vote to consolidate districts .......0.¢..06.00005 254 
VALENS METFOTL SLOTS arr on gc, ahd ohh a a wen She tete ane a eee RP ropa Ree 240, 246 


Y. M. C. A. Property 
GxGutiteeec OT iarar i Ket CLO lie Soo par tay oe ae ard a ss oi schon aden aja sieeter’ 138 


Ye ti 


Oe ee at 


